Guest Editorial: Public records belong to the public

This editorial is from the New York Times:

One bright spot of the Trump era is a greater public understanding of the rule of law and the institutions and individuals who sustain it.

But concerned citizens who wish to keep up with court cases - not to mention journalists covering them - face a barrier: the byzantine and overly expensive Public Access to Court Electronic Records system, more commonly known as PACER.

PACER, a 30-year-old relic that remains unwieldy to use, is a collection of online portals run by the administrative arm of the federal court system. It was designed, at least in principle, to provide online access to the more than 1 billion court documents that have been docketed in federal courts across the country since the advent of electronic case filing.

But the public can gain access to these public documents online only by paying significant fees. PACER charges 10 cents per page to view electronic court documents - or up to $3 for documents exceeding 30 pages, which are common. It's easy to burn up $10 just by looking up rudimentary information about a single case.

This can translate to significant costs for news outlets. Such costs can be a burden on smaller newsrooms, many of which have struggled financially in recent years.

As Adam Liptak, the Supreme Court correspondent for the New York Times, noted last week, PACER's fee structure is “preposterous.”

It may be unlawful, too. The E-Government Act of 2002 says that courts may impose fees “only to the extent necessary” to make public records available. That phrase is now at the center of a class-action lawsuit brought by nonprofit advocacy groups. The groups are challenging the fee structure of the PACER system, which in 2016 took in $146 million, despite costing only a small fraction of that to operate. The litigation has revealed that the federal court system uses the surplus to fund expenditures - such as courtroom technology and court notices to law enforcement agencies - that have nothing to do with enhancing public access or understanding of how the justice system works. The plaintiffs are asking that the government not “exceed the expenses actually incurred in providing records upon request.”

Ruling against the government in the case, a U.S. District Court judge last year marveled at this misuse of PACER fees. “The court does not see how flat-screen TVs for jurors or those seated in the courtroom, which are used to display exhibits or other evidence during a court proceeding, fall within the statute,” Judge Ellen Segal Huvelle wrote.

That ruling is now on appeal. A chorus of advocates - media organizations, former judges, First Amendment groups, legal research technologists and former Sen. Joe Lieberman, an original sponsor of the E-Government Act - have jumped into the dispute and sounded off on PACER's fees.

There's also an admirable bill that was introduced in 2018 in Congress, the Electronic Court Records Reform Act, which goes a step further than what is being sought in the class-action suit. It would make all documents filed with the federal courts available free to the public. (In 2017, the Supreme Court, often a late adopter of new technologies, made virtually all of its new court filings freely available online.) The legislation also would mandate needed updates to PACER, including making documents text-searchable and linkable from external websites.

These advancements would help ensure that the justice system is more transparent to all.

You can send a letter to the editor at letters@pressdemocrat.com