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A federal appeals court ruled that federal justice has overwhelmed thousands of users for access to public court records. PACER, short for Public Access to Electronic Records of Court, is an online system that allows members of the public (including Ars Technica reporters) to download documents pertaining to almost all federal court cases. For PDF documents, the site charges 10 cents per page – a figure well above the cost of running the system.
In 2016, three nonprofits sued the judiciary themselves over the matter. In the class action lawsuit filed on behalf of nearly everyone who pays PACER fees, it was argued that the courts should only collect enough fees to offset the cost of running PACER. Over the past 15 years, as storage and bandwidth costs fell, the courts increased PACER fees from 7 cents to 10 cents. The courts used the additional profits to fund other projects such as installing speakers and displays in courtrooms.
Plaintiffs argued that the courts should only charge the marginal cost of running PACER – this would be a fraction of the current fees. The government claimed the law gave the courts a wide discretion to decide how much to charge and how to use the money. In a 2018 ruling, a judge from the court struck a middle ground. It ruled that some uses of PACER fees had exceeded the mandates of Congress. However, it did not go as far as the plaintiffs wanted by limiting expenses to running the PACER system itself.
The Federal Circuit has its say
A three-person jury of appellate judges heard oral statements on the case in February. These judges seemed somewhat disbelieving in the reasoning of the judiciary. Judge Raymond Clevenger appeared to be a leading skeptic:
Clevenger asked in disbelief if it was legal to use PACER fees to "replace the Supreme Court curtains" and buy "the Chief Justice's new chair".
"We decorate all judges' offices with gold plates," he said sarcastically. According to the theory of justice, he said "there is absolutely no cure" for this type of illegal spending.
Thursday's verdict was drafted by Judge Todd Hughes and supported by the other two judges on the case. It confirms that the judges did not buy what the government lawyers were selling. The government had argued that the judiciary should not hear the case at all because the plaintiffs lacked prestige. The Federal Circuit Appeals Court flatly dismissed this argument, ruling that if the government overwhelmed PACER users, it had the right to sue to get their money back.
The appellate court upheld the lower court's finding that part of the judiciary's spending – including a pilot program for use of PACER software for state courts in Mississippi, a system for communicating with jurors, and efforts to improve audiovisual technology in courtrooms – would not have may be made with PACER funds. The government will likely have to issue refunds to PACER users to cover this misuse of PACER funds.
At the same time, the court of appeal agreed with the trial judge that the plaintiff's theory that PACER fees could only be issued for costs that are directly related to the service of PACER users was too restrictive. According to the three-person jury, the judiciary has the option to issue PACER fees for any project that is in any way related to the dissemination of electronic file information to the general public.
CM / ECF in the balance
One of the big open questions concerns CM / ECF, the electronic system used by plaintiffs and defendants to submit documents to the judiciary. In a way, CM / ECF and PACER are two sides of the same system, since documents uploaded to CM / ECF are available for download by PACER users. However, CM / ECF is not available to the public. And the courts would likely need such an electronic docketing system even if PACER didn't exist.
So we can expect plaintiffs to argue that CM / ECF should be paid in some other way – possibly by charging higher fees to litigants, or by providing Congress with adequate cash from general tax revenue. They will argue that CM / ECF is only available to parties and their lawyers, not the public, and is therefore not a system for public access to court records.
In contrast, the government is likely to argue that PACER and CM / ECF are a single integrated system. Therefore it is appropriate to use PACER fees to fund CM / ECF.
The Federal Circuit Appeals Court decided not to resolve this issue in Thursday's decision. Instead, the case has been sent back to the court, where the judge must clarify exactly what use of the PACER fees meets the standards set by the appellate court.