Just about any discussion of the federal judiciary’s online document system, PACER, will quickly turn to a questioning of the fees charged for accessing filings and why the information is not available for free.
A recent ruling from the U.S. District Court for the District of Columbia provided insight into the Public Access to Court Electronic Records system’s financial health and raised more questions. The case, National Veterans Legal Services Program et al. v. United States of America, 1:16-cv-00745, is a dispute over PACER funds. The plaintiffs claim the fees charged by the Administrative Office of the United States Courts exceeded the amount that could be collected under the E-Government Act of 2002.
Judge Ellen Segal Huvelle denied the plaintiff’s motion for summary judgment in a March 31 opinion. But she did find that some of the money collected through PACER was inappropriately used to pay for such things as courtroom video equipment and the victim notification system.
Also, she noted the amount of PACER fees collected each year climbed from $102.5 million in 2010 to $146.4 million in 2016, for a total of more than $920 million.
Mike Lissner, executive director of the Free Law Project, which advocates that PACER should be free, said he was disappointed the district court did not ask how much is actually needed to operate and maintain the online document system.
“I can’t think of any other system run by the government that turns that kind of a profit,” Lissner said. “The money is supposed to go to running PACER, not toward running other things.”
The Administrative Office declined to comment on the ongoing litigation. However, in 2017, James Duff, in his capacity as secretary of the Judicial Conference of the United States, addressed the financial aspect in a letter to Capitol Hill.
He told lawmakers that Congress had directed the Judiciary to charge user fees, which is why those benefitting from the availability of the filings are bearing the costs. However, he noted that “most ordinary citizens” are able to access PACER for free while the “high-volume, for-profit users” are paying their fair share.
“… (A)lmost 60 percent of users pay no fees at all,” Duff wrote, “and for most of the users who pay something, their fees are minimal, consistent with their volume of use.”
Josh Tatum, associate at Plews Shadley Racher & Braun LLP in Indianapolis, is not surprised PACER and its fees are the subject of lawsuits. When the online portal went live more than 25 years ago, charging per page made sense, he said, because court clerks around the country were having to manually put the complaints, motions and rulings in the system. Today, everything is filed electronically.
“I certainly understand and sympathize with people who are challenging that way of doing business,” Tatum said.
In expert testimony provided to the National Veterans case, Lissner broke down the PACER dollars. He estimated that while the system charges 10 cents per page, the present cost of the data storage is about one-half of one ten-thousandth of a penny per page.
“Running a judicial branch costs money, and having electronic documents on file is as much a part of the judicial branch as having a courthouse,” Lissner said. “If we don’t pay to enter a courthouse, we shouldn’t pay to get documents.”
Both Tatum and Brian Paul, partner at Faegre Baker Daniels LLP, do access PACER as part of their practices, but being part of law firms, they are unsure of the costs they rack up. Small firms or solo practitioners and members of the public might not be able to know the business of courts because of the fees.
“I think the information should be free, or if not free, at least reasonable,” Tatum said.
After being asked by the 7th Circuit Court of Appeals to write an amicus brief for a pro se litigant, Paul turned to PACER and downloaded 700 pages of court filings. He does not see a problem with the courts charging a fee because there are costs associated with keeping the system operating, but he is concerned that the price for access does not become unreasonable.
“Seems to me, it’s only fair that people who use the system would help foot the bill as long as the government is not running a profit,” Paul said. “… (But) I can’t think of a reason why this should be a revenue-generating device, why it should generate revenue for other purchases.”
Another lawsuit in Florida asserts PACER is violating the E-Government Act by charging for written opinions issued by the federal courts.
The case started when attorney Theodore D’Apuzzo noticed his PACER bill included charges for the opinions he had accessed. He contacted his former law school classmate, Nicole Giuliano of Giuliano Law P.A. in Fort Lauderdale, Florida, who then discovered she had been charged as well.
They then filed a complaint, Theodore D’Apuzzo v. United States of America, 16-cv-62729 in the U.S. District Court for the Southern District of Florida.
Giuliano argued the written judicial opinions should be free on PACER. The 2002 statute not only mandates the public have access to opinions, but the accompanying fee schedule also does not include a price for these documents.
She filed a motion to certify a class comprised of all PACER users who paid to open a judicial opinion between Nov. 22, 2010, and Nov. 22, 2016. However, the federal government countered that determining the class membership was not feasible with the current software capabilities the system has.
Judge Robert Scola, Jr., issued an order April 12 denying the plaintiffs’ motion. The six-page ruling cost 60 cents on PACER.
The court found defining the class would be difficult because the term “written opinion” is subjective and the individual judges have discretion in determining whether what they have written should be offered at no charge.
Someone other than the authoring judge, Scola reasoned, would have to review the past opinions and determine whether they should have been freely available. The issue of what constitutes an opinion is central to D’Apuzzo’s class definition and causes of action, and that would require individualized proof.
Speaking before the judge ruled, Giuliano said the D’Apuzzo and National Veterans cases were bringing PACER to the attention of the legal community as well as the larger public. “Opinions should be free,” she said. “… It goes back to public policy that people should be able to hear what the court is saying.”•