August 2009:
Is PACER in Need of an Overhaul?

Washington Watch | August 2009
By Bruce Moyer

In a Google®-centric world, where public access to many documents belonging to the federal executive and legislative branches is freely available, should more be done to make federal court records more transparent and accessible? Is PACER (Public Access to Court Electronic Records)—the computerized database of federal docketed pleadings, briefs, rulings, and opinions in the federal circuit, district, and bankruptcy courts—in need of a dramatic transformation to make the federal court system easier to use and to understand?

Sen. Joe Lieberman (I-Conn.), chair of the Senate’s Homeland Security and Governmental Affairs Committee, recently asked the Judicial Conference of the United States to explain how the courts are complying with federal laws designed to increase public access to court records and to protect the privacy of personal information contained in those records. That congressional inquiry comes amid complaints from advocates of open government that PACER is a primitive and outdated archival system.

In February, Carl Malamud, the founder of a nonprofit public records group, Public.Resource.org, told the New York Times that “PACER is just so awful. … The system is 15 to 20 years out of date.” Malamud personally has sought to create a more open system of gaining access to federal court records; he created a Web site on which he has installed millions of pages of federal court records and made them searchable on Google. He clashed with the federal courts last year when the Administrative Office of the U.S. Courts and the Government Printing Office began a pilot project to make PACER records more freely accessible. Under the pilot project, public access to millions of court documents was to be made available at 16 federal depository libraries in 14 states. But the pilot project was suspended when Malamud urged fellow activists to go to those federal libraries, download as many court documents as possible, and transfer them to him for re-publication on his Internet site where they would be more easily accessible and Google-searchable. One activist who responded to Malamud’s call reportedly downloaded an estimated 20 percent of the PACER library within days, prompting court officials to shut down the pilot project, which has not since restarted.

Despite these problems, the federal courts undoubtedly outshine state courts in the accessibility of their records. Few state courts maintain electronic retrievability of their opinions or dockets. Federal court officials contend that many PACER services and documents are provided to the public for free; charges are imposed at the minimum possible level only as a way to recover costs. PACER normally charges a fee of eight cents per page to those who create a PACER account, but a maximum charge of $2.40 is levied for electronic access to any single document. No fees are owed until a user accrues more than $10 worth of charges in a calendar year.

Challenges related to funding and privacy lie at the heart of attempts to modernize PACER. The fee system underlying the system is the work of Congress, which has never provided congressional appropriations for its support. Ever since PACER was implemented in 1991, federal lawmakers have insisted that the federal courts maintain and operate the electronic system through "reasonable fees" paid by the users of the system, and not through taxes paid by the general public. (Contrast that approach with THOMAS, the congressional records system maintained by the Library of Congress, which is funded entirely by taxpayer money.) Court officials contend that they are trying only to work within the framework Congress created. They note that, without fees derived from the largest users of the system—finance and information management corporations, like LexisNexis and West, which obtain millions of court documents and then resell access to them in a more user-friendly format— PACER could not possibly operate.

The protection of private information contained in court records is another complicating factor. The misuse of personal information in some court records can potentially lead to identity theft and other harm. So who should take on the role and cost of policing privacy in court records? Federal court rules currently require litigants and lawyers to redact all privacy-sensitive information (Social Security numbers, financial account numbers, names of minors, dates of people’s birth, and home addresses in criminal cases) from documents they file with the courts. This requirement places the responsibility for redaction squarely on the litigants and lawyers, not on the courts. Nonetheless, personal identifier information has reportedly continued to appear in some court filings, generating problems related to the right to privacy, especially for third parties. A subcommittee of the Judicial Conference is taking a closer look at these and other issues.

Bruce Moyer is government relations counsel for the FBA.
© 2009 Bruce Moyer. All rights reserved.

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