Federal judiciary resisting congressional effort to make PACER free

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With members of Congress on both sides of the aisle supporting a pair of bills that would give the public free access to federal court filings, federal judges are asserting filing fees would likely increase if PACER is prohibited from charging users.

The source of the judiciary’s concern is the Open Courts Act of 2021 which would require the Administrative Office of the United States Courts to develop and implement a single electronic system for federal court records that the public would be able to access for no charge. Through the identical bills of H.R. 5844 and S. 2614 , the Act has been introduced into both the U.S. House of Representatives and U.S. Senate.

Speaking to the Senate Judiciary Committee, Sen. Dick Durbin, chair, highlighted the key provision of the legislation.

“Importantly, this bill would make clear to the (Administrative Office) that PACER must be free to the public,” the Illinois Democrat said.

However, the Judicial Conference of the United States is asking for “meaningful two-way dialogue” with Congress to discuss areas of concern about the OCA. In particular, the federal judges assert without stable funding, like that which comes from user fees, the effort to modernize the online case management system would become more difficult. Moreover, the judiciary contends the courts might have to charge higher filing fees to make up for lost revenue which could hinder litigants’ access to the courts.

“The OCA would require dramatic changes to the backbone system upon which the federal courts depend for mission critical day-to-day operations,” Judge Roslynn R. Mauskopf, Judicial Conference secretary, wrote in a Jan. 11, 2022, letter to Rep. Henry “Hank” Johnson, Jr., author of H.R. 5844. “…The judicial branch, the litigants desiring to have their cases heard in the federal courts, and the public seeking access to court case records, will bear the consequences if the legislation proves operationally or budgetarily infeasible.”

Johnson, D-Georgia, introduced H.R. 5844 Nov. 3, 2021. Rep. Darrell Issa, R-California, has been added as a co-author and the bill has been referred to the House Judiciary Committee.

The companion bill, S. 2614, was introduced into the U.S. Senate Aug. 4, 2021. It is authored by Sen. Rob Portman, R-Ohio, and has gained 11 Democratic and three Republican co-sponsors. The bill was passed by the Senate Judiciary Committee on a unanimous vote voice Dec. 9, 2021.

In his remarks to the Judiciary Committee about S.2614, Durbin listed the criticisms of the Public Access to Court Electronic Records (PACER).

Namely, he said, the fees charged to open the documents might be too expensive for individuals, small businesses, small law firms and nonprofits. Also, low-income individuals could be prevented from going forward with meritorious lawsuits because of the costs associated with accessing records.

In addition, he continued, the PACER’s “search function is torturous” and there is no uniformity in filings among the 92 district courts and 13 appellate courts.

“It’s time for us to do something,” Durbin told his Senate colleagues.

The Open Courts Act would enable the courts to make up for the lost revenue by allowing them to charge certain high-volume PACER users on a temporary basis. After the new system is in place, the operational costs would be funded primarily by annual fees from federal agencies and Congressional appropriations.

“We’re trying to strike a balance that ensure there will be adequate resources for this effort while creating the corrective incentives for efficiency and access,” Durbin said.

In an analysis of H.R. 5844 and S. 2614, the Judicial Conference emphasized neither bill appeared to provide a “workable mechanism to fund the modernization” of the federal courts’ Case Management and Electronic Filing System (CM/ECF).

“We share the view that CM/ECF modernization is a critical goal,” the Judicial Conference stated in its analysis. “We also share the goal that PACER be provided without charge to most ordinary users, which is already the case. Moreover, the Judicial Conference has not opposed – in the abstract – to offering PACER services without charge even to high-volume users. But – unless Congress uses its power to create an alternative reliable funding stream – reducing or eliminating PACER fees for high volume users will continue to place other important public values at risk.”

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