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Open government advocates are quickly losing patience with the Administrative Office of U.S. Courts (AO). After the AO doubled the quarterly fee waiver from $15 to $30 in January, Advocates from argue FixTheCourt called it “Wholly Inadequate” and have called for the US Courts to change antiquated business model of the Public Access to Court Electronic Records (PACER) system which charges the public thousands of times more than it should cost to provide access to federal court documents. I completely agree with FixTheCourt. Government information, including US court records, should be free to the public! Litigation on PACER is ongoing, but let’s hope we can get some solid legislation to MAKE PACER FREE! It’s long beyond time.
Open government advocates are decrying recent changes to the PACER fee scale as wholly inadequate and are calling on Congress to improve upon and advance bipartisan bills to reduce the costs of accessing federal court records. The move comes as the Administrative Office of U.S. Courts (AO) officially notified House and Senate leadership last week of its previously approved changes to PACER charges.
…it is estimated that the actual cost to retrieve these documents, with storage fees built in, is $0.0000006 per page. Storing the roughly one billion documents in PACER should then run about $600,000, or about one-half of one percent of PACER’s reported revenue ($146.4 million in 2016). And yet, the AO still charges $0.10 per page of search results and $0.10 per page of case documents.
Our friend Stephen Schultze, a 3rd year Georgetown University law student (formerly associate director of the Center for Information Technology Policy at Princeton University), argues in a new paper that the Public Access to Court Electronic Records (PACER) system should be free. We concur!
Schultze, Stephen, The Price of Ignorance: The Constitutional Cost of Fees for Access to Electronic Public Court Records (December 4, 2017). Georgetown Law Journal, Vol. 106, No. 4, 2018. Available at SSRN.
This paper argues that the federal judiciary has erected a fee structure that makes public records practically inaccessible for many members of the public and for essential democratic purposes. The per-page fee model inhibits constitutionally protected activities without promoting equally transcendent ends. Through this fee system, the judiciary collects fees at ever-increasing rates and uses much of the revenue for entirely other purposes — in an era in which the actual cost of storing and transmitting digital records asymptotically approaches zero. PACER should be free.
This is welcome news re the US Supreme Court. Fulfilling a promise outlined by Chief Justice John G. Roberts Jr. in his 2014 year-end report on the federal judiciary, the Supreme Court is adopting electronic filing for all of its cases. The new electronic filing system will begin operation on November 13, 2017. Full and free Supreme Court dockets will be a boon to lawyers, researchers, students, and the public. Is this the beginning of the end for the Public Access to Court Electronic Records (PACER) system (he says hopefully!)?
After lagging behind other courts for years, the Supreme Court is finally catching up on a key technological feature that will be a boon to researchers, lawyers and analysts of all kinds. It’s moving to adopt electronic filing.
The change will allow the public to access legal filings for all future cases — free of charge. Beginning Nov. 13, the court will require “parties who are represented by counsel” to upload digital copies of their paper submissions. Parties representing themselves will have their filings uploaded by the court’s staff.
All those submissions will then be entered into an online docket for each case, and they will be accessible from the court’s homepage.
The Public Access to Court Electronic Records (PACER) document system of the US Courts provides online access to US Appellate, District and Bankruptcy court records. But this access is not free; PACER charges users $.10/page to access and download court documents. For years, many have pointed out both the technical and philosophical problems with the the PACER system; In fact, the Center for Information Technology Policy at Princeton University and the Free Law Project got together to create a firefox/chrome extension called RECAP, which allows users to automatically search for free copies during a search in the fee-based online US legal database PACER, and to help build up a free alternative database at the Internet Archive.
So it should come as no surprise that the US Courts Administrative Office is getting sued because, the plaintiffs say that PACER is using bad math to overcharge users. Below is the crux of the tech dirt article.
Bryndon Fisher says PACERs math is screwy. He dug into PACERs page calculations and, according to his class action lawsuit, it almost always adds its bytes up incorrectly. (via Courthouse News and Venkat Balasubramani):
Based on an extensive investigation into PACER’s billing practices, PACER exhibits a systemic error that overcharges users for accessing docket reports in violation of its stated policies and procedures.
The basic problem is simple. PACER claims to charge users $0.10 for each page in a docket report, up to a maximum charge of $3.00 per transaction. Since by default, these docket reports are displayed in HTML format, PACER uses a formula based on the number of bytes in a docket to determine the number of billable pages. One billable pages equals 4,320 extracted bytes.
In reality, however, the PACER billing system contains an error. PACER artificially inflates the number of bytes in each extracted page, counting some of those bytes five times instead of just once. As a result, users are systematically overcharged for certain docket reports.
Fisher says this error is resulting in overcharges for everyone using PACER. He tallied up his costs and found PACERs bad math caused a significant cost increase.
During the past two years, Fisher accessed 184 court docket reports using PACER and was charged and paid a total of $109.40 to the AO for this access. These charges do not include access to the individual PDF documents, only access to the docket reports.
Over this two-year period, based on the formula contained in the PACER User Manual, Fisher should have been charged $72.40, representing an overcharge of $37.00 or approximately 51%.