Bill to tear down federal courts’ paywall gains momentum in Congress

Two men in suits and face masks confer in front of a US flag.
Enlarge / Judiciary Chairman Jerry Nadler (D-N.Y.) and Ranking Member Jim Jordan (R-Ohio) disagree about many issues, but they both support the Open Courts Act.

The House Judiciary Committee on Tuesday unanimously approved the Open Courts Act—legislation to overhaul PACER, the federal courts’ system for accessing public documents. The proposal would guarantee free public access to judicial documents, ending the current practice of charging 10 cents per page for many documents—as well as search results.

The bill must still be passed by the full House and the Senate and signed by the president. With Election Day just seven weeks away, the act is unlikely to become law during this session of Congress.

Still, the vote is significant because it indicates the breadth of Congressional support for tearing down the PACER paywall. The legislation is co-sponsored by Rep. Doug Collins (R-Ga.), whose bill we covered in 2018, and a fellow Georgian, Democrat Hank Johnson.

Prior to Tuesday’s vote of the House Judiciary Committee, the bill received a strong endorsement from Chairman Jerrold Nadler (D-N.Y.).

“It is indefensible that the public must pay fees, and unjustifiably high fees at that, to know what is happening in their own courts,” Nadler said.

This was followed by an equally enthusiastic endorsement from Rep. Jim Jordan (R-Ohio), the top-ranking Republican on the Judiciary Committee and an ally of President Trump.

“Proponents of judicial transparency have long advocated for free public access to court records,” Jordan noted. “I agree court records and information should be more easily accessible. The commonsense reforms contained in the bill are long overdue.”

In short, this is a rare reform proposal with strong support across the political spectrum. In today’s Congress, even broadly popular ideas don’t always become law quickly. But this one has a good shot at passage in the next Congress if it doesn’t happen in this one.

Modernizing PACER

The bill goes beyond just eliminating the 10-cent-per-page charge. It directs the courts to make a number of changes long pushed by advocates of judicial transparency.

Right now, each of the nearly 200 trial, bankruptcy, and appeals courts in the United States runs its own instances of PACER as well as the CM/ECF system that litigants use to submit documents to the courts. Not only does this increase the cost and complexity of the running the system, it also means that the courts do not provide a nationwide search function. If you don’t know which court is hearing a particular case, there’s no easy way to find its docket or view documents associated with the case.

Independent projects like RECAP (which I helped to create a decade ago) have tried to fill this gap with their own search engines. But they only have some of the documents in the PACER system. An official nationwide PACER search engine would be more comprehensive and hence more useful.

The Open Courts Act instructs the courts to create “one system for all court records,” including a search function.

This new system would support permalinks so that other sites can link directly to individual documents. The courts would also be required to publish information in a “non-proprietary, full text searchable, platform-independent computer-readable format,” allowing third parties to easily make use of the data for academic research, journalism, and other purposes. Courts would be given two to three years to make these changes in cooperation with the General Services Administration, a federal agency that has experience with large-scale IT projects.

Funded by higher fees elsewhere

In the past, one of the big sticking points for eliminating PACER’s paywall has been finding replacement funds. It’s a tough problem because Congress hasn’t shown much appetite for higher spending even on widely popular programs.

The Open Courts Act deals with this by increasing other fees charged by the courts. In the short run, the legislation would actually increase PACER fees for the heaviest users—those that rack up more than $25,000 in quarterly charges. These fees would hit data brokers that harvest data from the court records to use in background checks, legal databases, and other commercial services. Higher fees on these commercial providers would help the courts finance the development work to fund the new PACER.

In the longer run, revenue would be generated by higher fees for people who file lawsuits. To avoid being too burdensome, the new fees would exempt plaintiffs who are representing themselves and others who can demonstrate the fee creates a financial hardship. The bill would also charge fees to creditors in bankruptcy proceedings.

If Congress doesn’t act, PACER’s 10-cent-per-page fee may be reduced in the next couple of years thanks to a class-action lawsuit claiming that the courts are charging more than current law allows. Plaintiffs won a key early ruling from an appeals court last month. But even if the plaintiffs ultimately prevail, the case will only reduce PACER fees—it won’t eliminate them altogether. And transparency argues that any paywall—even a substantially cheaper one—poses a substantial barrier to public access.


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