Federal Courts Are Running a Surplus Charging for Public Records

For years, members of Congress and advocates of open government have been urging the federal court system to eliminate fees for its electronic records. In June, the federal judiciary took a look at the problem—and decided to hike the fees.

The Administrative Office of the U.S. Courts announced that it was temporarily raising the search and download fees for its Public Access to Court Electronic Records (PACER) database. Temporary fees tend to be like “temporary” emergency measures, but the judiciary says the extra revenue will cover the cost of completing a long-awaited modernization of the clunky and frustrating system, which it estimates will require $700 million to $800 million over six years. That project, which was spurred by two serious data breaches, is welcome news to the many lawyers, reporters, and researchers who rely on PACER to follow federal cases. But it ignores a central problem: The court system overcharged PACER users for years while letting its database deteriorate.

Under the E-Government Act of 2002, the federal judiciary is supposed to collect only enough revenue from PACER users to cover the costs of maintaining the database. But for years, PACER raked in about $145 million annually while incurring about $3 million a year in operating costs.

PACER currently charges 10 cents per page for court records and searches. There is a $3 cap on large documents, and users pay nothing if their bill is less than $15 per quarter. Most casual users pay nothing, but costs can quickly add up for news organizations, researchers, and legal professionals.

Even the Justice Department pays to search PACER, to the tune of about $5 million a year. That’s right: The government shuffles money between branches so government employees can look at court records that the government already owns.

“Distribution of documents on the internet at costs that resemble 1970s copyshop fees is ridiculous in today’s day and age,” Carl Malamud, a prominent public domain advocate, told me in 2019. The situation also strikes many legislators as ridiculous. In 2020, the House passed the Open Courts Act, which would eliminate PACER’s paywall. The bill failed to pass the Senate, but Sens. Ron Wyden (D–Ore.) and John Kennedy (R–La.) reintroduced it this year.

“Americans should not have to sell plasma or wrestle with clunky government websites just to read public court records,” Kennedy said in a press release. “PACER is old, very expensive and extremely burdensome to use. The Open Courts Act would drag this outdated system into the 21st century, protect court records from hackers and give taxpayers a better deal. Government services ought to serve the American people—not make them want to put their head through a wall.”

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