Login | October 23, 2020

Congress looks to make PACER free for everyone

Technology for Lawyers

Published: October 9, 2020

Recently, as covered by this column, the US Court of Appeals for the Federal Circuit upheld a lower court ruling that that the federal judiciary misused PACER-generated funds in paying for certain costs associated with electronic access to court records. National Veterans Legal Services, et. al, v. United States, 2019-1081,1083.
Following that ruling, and in a rare bipartisan effort, Congress has stepped in with a bill to eventually make PACER free to everyone. In fact, the bill has statements of support from such disparate voices as Rep. Jerry Nadler and Rep. Jim Jordan.
The bill, H.R. 8235, labeled the Open Courts Act of 2020, was sponsored by Reps. Hank Johnson (D-Ga.) and Doug Collins (R-Ga.). The full text of the bill is here: https://www.congress.gov/bill/116th-congress/house-bill/8235/text.
The bill was immediately advanced out of the Judiciary Committee for a floor vote. This contrasts with other judicial reform bills which have stalled in that committee, including the 21st Century Courts Act, which, among other things, would require the US Supreme Court to make live audio of oral arguments available to the public and impose ethics rules on the Court.
As reported by the National Law Journal, the Open Courts Act would require the federal judiciary to update and modernize its electronic public access program within two-to-three years. The system hosts the case management and electronic case filing system, CM/ECF and PACER.
The costs of running the system would eventually be transferred over from user fees and court budgets to the Department of Justice, court costs, and other fees. The DOJ fees are fixed at the fees paid in 2017, which the court transparency group Fix the Court estimates at about $4 million.
During the two or so years of this upgrade, PACER will be financed by “power users” – defined as those who spend at least $25,000 annually on court filings, who would continue to pay fees per page. After the upgrade is complete, PACER would be free for all users.
One other welcome upgrade to the system would be the development of search capabilities that access the system as a whole, rather than the current system which searches within each individual court.
The bill now goes to the full House, and then on to the Senate if it passes there.