PACER Removes Court Case Documents

On August 10, 2014, The Administrative Office of the U.S. Courts, which runs PACER (Public Access to Court Electronic Records) abruptly announced that a bunch of cases would “no longer be available.” See below for a copy of the announcement and the cases covered.

PACER makes court papers available (for a fee) as well as court opinions (for free). It is not clear from the announcement, but it appears that the removal of these cases will include the removal of the opinions.

Some court opinons are available through CourtWeb (the “Online Federal Court Opinions Information System”) which “provides information on selected recent opinions of those judges of the United States Courts who elect to make information available on this site,” and from the websites of the individual courts.

As a joint “project” of the Government Printing Office and the Administrative Office of the United States Courts, FDsys has some United States Courts Opinions, but (apparently) none of the opinions in the list of withdrawn cases and none of the case files that PACER has. PACER includes: a Case Locator service (a national index for U.S. district, bankruptcy, and appellate courts), listings of all parties and participants including judges, attorneys and trustees, compilations of case related information such as cause of action, nature of suit and dollar demand, chronologies of dates of case events entered in the case record, A claims registry, A listing of new cases each day in all courts, Judgments or case status. (In the table below I have included the coverage of case opinions by FDsys.)

There have been attempts, including by Aaron Schwart, to free this information from the fee system (RECAP, Public.Resource.Org), but they have had limited success and have been met with vehement opposition (FBI Investigated Coder for Liberating Paywalled Court Records and Court Tells Users They Can’t Use RECAP).

Although PACER makes court opinions available for free, it is one of the agencies that is required (like NTIS) to recover costs. In 1988, the Judiciary sought appropriations from the U.S. Congress in order to provide electronic public access to court records but Congress did not provide the funds and instead directed the Judiciary to fund the initiative through user fees. As a result, the program relies exclusively on fee revenue (PACER FAQ). It has an elaborate free schedule for searching and obtaining court papers (Electronic Public Access Fee Schedule). The fees that PACER charges have been shown to far exceed its costs (PACER Federal Court Record Fees Exceed System Costs).

Most agencies are permitted by statute to charge fees for access to information. Even GPO is allowed to “charge reasonable fees” (44 USC sec 4102) to the public. (Although it is required to make its systems available to depository libraries without charge, we all know how well trying to charge the public for information available free at libraries worked out for GPO when it tried to charge for GPO Access back in the 1990s: Privatization of GPO, Defunding of FDsys, and the Future of the FDLP.) Still, the threat always remains that Congress will privatize or commercialize or monetize its information “assets” at any time. As long as we rely on GPO and government agencies to preserve and provide free access to government information, we are playing a risky game (When we depend on pointing instead of collecting). If we lose that game, it is our users who will pay the price (and the cost) and they will not thank us for failing to preserve government information and ensure free access to it.

The Annoucement:

• Changes to information available on PACER, Administrative Office of the U.S. Courts, PACER Service Center.

On August 11, a change was made to the PACER architecture in preparation for the implementation of the next generation of the judiciary’s Case Management/Electronic Case Files (CM/ECF) system. NextGen CM/ECF replaces the older CM/ECF system and provides improvements for users, including a single sign-on for PACER and NextGen CM/ECF. As a result of these architectural changes, the locally developed legacy case management systems in the five courts listed below are now incompatible with PACER; therefore, the judiciary is no longer able to provide electronic access to the closed cases on those systems. The dockets and documents in these cases can be obtained directly from the relevant court. All open cases, as well as any new filings, will continue to be available on PACER.

court	cases removed	FDsys coverage
U.S. Court of Appeals for the 2nd Circuit	Cases filed prior to January 1, 2010	2010-
U.S. Court of Appeals for the 7th Circuit	Cases filed prior to CM/ECF conversion	2005-
U.S. Court of Appeals for the 11th Circuit	Cases filed prior to January 1, 2010	2010-
U.S. Court of Appeals for the Federal Circuit	Cases filed prior to March 1, 2012	[none]
U.S. Bankruptcy Court for the Central District of California	Cases filed prior to May 1, 2001	2005-

Please contact the court directly to obtain copies of documents and dockets in the above cases. Contact information for each court is available on the Court Locator page.

Press coverage:

• PACER Deleting Old Cases; Time To Fix PACER” by Mike Masnick, techdirt (Aug 25th 2014).
• Why PACER removed access to case archives of five courts, By Andrea Peterson, Washington Post (August 26, 2014).

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