LM Extras Jan 25, 2021

Open Courts: Easier, Cheaper Case Documents

Changes may be coming in the way law firms access federal court documents. The Open Courts Act of 2020, H.R. 8235, which landed in the lap of the Senate Judiciary Committee on December 9, calls for the establishment of a centralized, streamlined electronic system for all Federal court records, publicly accessible free of charge by January 2025.

Phillip M. Perry

The Act would eliminate the 10 cents-per-page fee that users now pay when retrieving documents over the internet through PACER, an acronym for “Public Access to Court Electronic Records.” Such fees can mount up for legal organizations, journalists, academic researchers and anyone else bent on tracking federal court machinations.

“Forcing the public to pay for access to court records imposes an unnecessary and unconscionable burden on people who are simply engaging in a constitutionally protected activity,” said the bill’s sponsor, Rep. Henry C. Johnson, Jr. of Georgia, in a December floor speech. “Transparency and accessibility should be our goal, not profits and limited access.”

Additionally, the bill calls for the streamlining of the document search routine, requiring conformation to best practices for user-friendly software design. In alluding to the current program’s awkward interface, Rep. Johnson cited “mounting alarm” that “the outdated programs PACER fees subsidize have harmed access to justice, infringed on the foundational right of public access to court records, stifled innovation, and fostered wasteful spending. Court records should be as easy to access as legislation is on congress.gov.”

If passed, the legislation will likely affect any litigation practice where paralegals monitor cases in the federal court system. PACER has long been the go-to resource for discovering information such as what cases have been filed, the identification of representing counsel, and whether an opinion has been issued on a case or a ruling has been made on a motion.

“I'd be surprised if there is any firm in a federal litigation practice that doesn't use PACER,” says Brian P. Gilman, CLM, Chief Operating Officer, Smith Debnam and a Director on ALA’s Board. “For our own attorneys, the system is an integral part of keeping track of where things stand in the court system, which facilitates our professional services to our clients. I know there’s a hue and a cry on the rare occasion we lose access to it, which testifies to our daily reliance.”

The legislation has sparked controversy. James C. Duff, Secretary of the Judicial Conference of the United States, has charged that a free database would amount to “a financial windfall” for legal database companies, large banks and research institutions. The Judiciary, he says, might be forced to “slash funding for staff and other critical operations” and “the bill as drafted will have devastating budgetary and operational impact on the Judiciary and our ability to serve the public.” He added that budget shortfalls might spark an increase in filing fees that would prevent many litigants from seeking relief in federal courts.

On the other side of the coin, some question whether PACER usage fees have been utilized properly to cover expenses incurred in providing public access to court records. Last summer a federal appeals court ruled that the administrative office of the courts had misused paywall fees for projects such as the acquisition of flat screen televisions for jurors.

How much will the new system cost? The federal judiciary has expressed alarm about the bill that might come due. Estimates range from $40 million over ten years (from the lawmakers) to a whopping $2 billion (from the Judiciary). To fund the development of the system, the bill calls for the establishment of temporary additional access fees for high volume, for-profit users who accrue fees for electronic access to information in an amount of $6,000 or greater in any quarter.

The temporary fees would be assessed on a progressive usage schedule and would be eliminated when the system is up and running in 2025. Once the legislation is in effect, funding for its continuing operation will come from annual fees assessed the Department of Justice based on the amount of PACER fees paid by the department in 2018.

The next step is a report from the Senate Committee on the Judiciary. Stay tuned.

Click here to track the progress of The Open Courts Act in Congress.