Thanks to the rise of computer storage technologies and the internet, federal courts were able to move from paper records to electronic filing systems beginning in the 1980s. Public Access to Court Electronic Records (PACER) was established as the public gateway to federal court documents.
Rather than funding this initiative, Congress allowed the Judicial Conference of the U.S. to assess fees for accessing all but Supreme Court filings (which remain free). The costs of this access have increasingly been criticized by lawyers, scholars, and the public ever since. Today, lawsuits and other actions have been filed to improve access to, push for updates to the design and functioning of, and reduce or eliminate fees for PACER.
PACER has been a success in that it has provided far better, faster access to key information than ever before. Registration is required to use it, and its website claims that the “more than one million PACER users include attorneys, pro se filers, government agencies, trustees, data collectors, researchers, educational and financial institutions, commercial enterprises, the media, and the general public.” Information comes from federal appellate, district, and bankruptcy courts, and users can search with the PACER Case Locator (PCL).
A Complicated Technological Structure
Considering that PACER was established in the early days of the government’s move to the internet, some of its structural issues are perhaps understandable. The PACER Service Center is located in San Antonio, with data transferred each night to keep files updated. However, the structure of PACER is highly distributed—each court maintains its own databases, with only more descriptive and indexing information brought into PACER. The detailed case information is maintained in individual computer systems spread across the U.S.
A 2014 ABA Journal article states, “Part of PACER’s problem is that it is actually 214 separate systems. Every … court maintains its own site, each requiring a separate search.” Courts are now in various stages of moving from legacy to Case Management/Electronic Case Filing (CM/ECF) systems, which would eventually allow for better, faster access. The complexity of CM/ECF is clear from the 31-page user manual that is available (last updated in June 2017).
In 2009, The New York Times reported that PACER had a budget surplus of about $150 million, providing a cash cow for supporting the upgrading of technology throughout the federal court system. This introduced serious criticism over such a high level of profits for publicly available information.
Charging for Public Domain Information
With 1 million-plus clients, PACER has more than paid for current costs. Its About Us page explains, “The program generates fee revenue that is used to support ongoing program operations, development and maintenance costs associated with the CM/ECF systems used by the federal courts throughout the country. Revenue is also used to finance other expenses related to electronic public access to the courts in areas such as courtroom technology, electronic noticing in bankruptcy cases, and for web-based juror notification and processing.”
PACER users are charged “$0.10 per page. … [There is] a cap on the per-page charge, with a maximum $3, the equivalent of 30 pages, for electronic access to any single document. … The cap does not apply to name searches, reports that are not case-specific, and transcripts of federal court proceedings.” Over time, exemptions have been added to the system due to criticism of the costs. According to January 2018’s PACER Quarterly Newsletter, “An updated version of the Multi-Court Exemption Request Form … can assist researchers who request exempt access in relation to a defined scholar’s research project. The new process outlined in the updated form allows Administrative Office of the U.S. Courts (AO) staff to review requests submitted by researchers to multiple courts, rather than requiring researchers to contact each court individually.”
A 2015 post from the Free Law Project lists four problems with PACER: The fees are too high, “especially in the case of surprise charges for searches where the total charge for the search is not known until after you have incurred the charge,” the “user interface is an inexplicable unusable disaster,” there is no way to search at the document level, and there is no real accountability for the system.
There have been significant issues with the inclusion of Social Security numbers and other identifying information in the database. In 2015, the Federal Judicial Center published a study stating, “The presence of Social Security numbers for approximately 75% … of [documented] individuals appears to violate rules adopted by the Judicial Conference of the United States.” The 2009 The New York Times article reported other privacy concerns, with the inclusion of “data on children in Washington, names of Secret Service agents, members of pension funds and more.” Any system—especially one as broad-based and scattered across numerous court systems as PACER—is bound to have problems; however, other databases have been able to offer alternatives, some even for free.
In 2010, the U.S. Courts released results of a yearlong study of their entire Electronic Public Access program, which included a survey of PACER users. A blog post on the results says that “significant barriers to public access may exist” for members of the general public, especially the requirement to register (with credit card information or address), which may “turn away many potential PACER users at the door.” It concludes, “With our other two branches of government making great strides in openness and transparency with the help of technology, the Courts similarly [need] to transition away from a one-size-fits-all approach to information dissemination. Public access to the courts will be fundamentally transformed by a vigorous culture of civic innovation around federal court documents, and this will only happen if the courts confront today’s access barriers head-on and break them down.”
Alternatives and the Future
In 2015, a class-action suit was filed in federal court concerning the overcharging that many have experienced due to “counting errors” in the PACER system. In 2017, a judge certified a class-action suit alleging that PACER fees exceed the actual cost of providing the records, which is a violation of the E-Government Act of 2002.
Attorney Gavin McGrane, “frustrated with PACER’s shortcomings,” has developed PacerPro, “a clean, modern interface to the PACER system,” according to the ABA Journal article. It “aggregates key case data in a single display” and allows for Boolean and proximity searching. At no cost to sign up, it is “a gateway, not a substitute,” which “does not fix all of the federal site’s problems. But by providing a modern interface with enhanced functionality, PacerPro makes PACER easier to use.”
RECAP from the Free Law Project is another effort to improve the use of PACER. It provides “tens of millions of PACER documents, including every free opinion in PACER. Everything in the archive is fully searchable, including millions of pages that were originally scanned PDFs. … [T]he RECAP Archive [is] available via an API or as bulk data for journalists, researchers, startups, and developers.” Other systems for this information, often fee-based, include Bloomberg Law’s Dockets, Justia’s Dockets & Filings, and FreeCourtDockets (free, but you must go to PACER to get the documents filed in the case).
What Price Ignorance?
In an excellent pre-publication draft of an article in The Georgetown Law Journal, “The Price of Ignorance: The Constitutional Cost of Fees for Access to Electronic Public Court Records,” Stephen Schultze concludes the following: “We should not overlook the intrinsic right of public access to court proceedings simply because it is so foundational that it is unstated in the Constitution. Nor should we pretend that the measure of practical access is static while the means evolve. The courtroom door—held open from time immemorial—stands for an equally fundamental commitment to public access today.”
We live in a time of great challenges to our democracy, from within and without, and yet we can only hope that our courts can find ways to make their information available to one and all without an added financial burden.