Enlarge /. Justice chairman Jerry Nadler (D-N.Y.) And ranking member Jim Jordan (R-Ohio) disagree on many issues, but both support the Open Courts Act.
The House of Representatives Judiciary Committee unanimously passed the Open Courts Act on Tuesday – a law to revise PACER, the federal courts' system of access to public documents. The proposal would ensure free public access to court documents and end the current practice of charging 10 cents per page as well as search results for many documents.
The law has yet to be passed by the whole House and Senate and signed by the President. With Election Day only seven weeks away, the law is unlikely to become law during this session of Congress.
Still, the vote is significant as it shows the breadth of Congress support for the demolition of the PACER paywall. The legislation is endorsed by Rep. Doug Collins (R-Ga.), Whose bill we discussed in 2018, and a Georgian compatriot, Democrat Hank Johnson.
Before the House Judiciary Committee vote on Tuesday, the bill was strongly endorsed by Chairman Jerrold Nadler (D-N.Y.).
"There is no justification for the public having to pay fees and unjustifiably high fees in order to know what is going on in their own courts," said Nadler.
This was followed by equally enthusiastic support from Rep. Jim Jordan (R-Ohio), the senior Republican on the Justice Committee and an ally of President Trump.
"Proponents of the transparency of the judiciary have long advocated free public access to court files," said Jordan. "I agree that court records and information should be more easily accessible. The common sense reforms included 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 popular ideas don't always become law quickly. But this one has a good chance of showing up at the next congress if it doesn't happen in this one.
The bill goes beyond eliminating the 10 cents per page fee. It instructs the courts to make a series of changes that have long been pushed by advocates of the transparency of the judiciary.
Currently, each of the nearly 200 judicial, bankruptcy, and appeals courts in the United States operates its own instances of PACER and the CM / ECF system that litigants use to submit documents to the courts. Not only does this increase the cost and complexity of system operations, but it also means that the courts do not provide a nationwide search facility. If you don't know which court is hearing a particular case, there is no easy way to find the transcript or view the documents related to the case.
Independent projects like RECAP (which I helped create a decade ago) tried to fill this gap with their own search engines. However, you only have some of the documents in the PACER system. An official nationwide PACER search engine would be more comprehensive and therefore more useful.
The Open Courts Act instructs the courts to create "one system for all court records" including a search facility.
This new system would support permalinks so that other websites can link directly to individual documents. Courts would also have to publish information in a "non-proprietary, full-text searchable, platform-independent, computer-readable format" so that third parties can easily use the data for academic research, journalism and other purposes. The courts would have two to three years to make these changes in collaboration with the General Services Administration, a federal agency that has experience with large-scale IT projects.
Financing through higher fees elsewhere
In the past, one of the big problems removing PACER's paywall was finding substitutes. It's a difficult problem because Congress hasn't shown much appetite for higher spending, even for widespread programs.
The Open Courts Act regulates this by increasing other fees charged by the courts. In the short term, the legislation would actually increase PACER fees for the heaviest users – those who charge quarterly fees in excess of $ 25,000. These fees would hit data brokers who collect data from court records for use in background checks, legal databases, and other commercial services. Higher fees for these commercial providers would help the courts fund development work to fund the new PACER.
In the long term, revenue would be generated by higher fees for people filing lawsuits. In order not to be too onerous, the new fees would exempt claimants who represent themselves and others who can prove the fee from the tax, creating a financial hardship. The bill would also charge fees to creditors in bankruptcy proceedings.
If Congress fails to act, PACER's 10 cents per page fee may be lowered over the next few years based on a class action lawsuit alleging that the courts are demanding more than current law allows. Plaintiffs received an important early decision by an appeals court last month. But even if the plaintiffs ultimately prevail, the case will only lower the PACER fees – they won't be completely eliminated. And transparency argues that any paywall – even a much cheaper one – is a significant barrier to public access.