What Should It Cost?

I agree in principle with this editorial in the New York Times. Excessive fees should not be charged to read public records:

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 one 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.

But I think this is a bridge too far:

here’s also an admirable bill that was introduced last year in Congress, the Electronic Court Records Reform Act, that 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.

The federal government shouldn’t be in the business of financing commercial news organizations. Web sites, particularly web sites that can support significant numbers of concurrent users while maintaining reasonable page load times, are expensive to build, maintain, and host. They aren’t “free”.

The Times is rent-seeking here. Fees should be whatever are necessary to keep the site going rather than being set at a level that defrays the costs of companies that turn around and charge for their papers or access to their web sites.

8 comments… add one
  • PD Shaw Link

    The initial system here provided electric file-handling for litigation. Lawyers could scan filings instead of printing them. Courts could do the same. But even though its ostensibly a federal system, local courts have local rules, and some areas of law like asbestos or bankruptcy have very different portals because they are designed for unique procedures. All of that is to say, I sensed an underlying issue with the messiness of this process and a lack of understanding that it wasn’t built for the media. And lawyers have to pay the same per-page fee for anything that is not served on them.

    The secondary function, which is the PACER system, is to replicate the previous practice in which people could go to the courthouse and look at the court file and make copies of what they wanted with a fee charged. I’m sure the fees then, as now, are set to recapture office costs at a level that is padded, but ten cents a page is lower than what I believe are typical charges for dead trees.

    I also think there are privacy issues with evidence that appears in trial court files, and probably would be more restrictive with accessing it than was probably common in pre-electronic days.

  • PD Shaw Link

    I just got my renewal bill to my local newspaper and they are now charging a flat $9.95 fee each time you pay by mail. I usually pay quarterly (which cost $158.13), so that would be four times a year. As much as I resent what I consider low tactics, I am afraid that local news is going to disappear because nobody will pay for it. (I realize they are pushing me into some sort of automatic renewal system with its own universe of fees and gamesmanship, but I haven’t looked into it recently)

  • TastyBits Link

    I disagree. Public records should be easily accessible by the public.

    At the NRC website every public record is available to be searched, read, and downloaded for free. I am not sure if they have digitized every historic record, but it does go back to the 1980’s.

    To my knowledge, the FED graphs everybody publishes on their website are free.

    Crony capitalism, fraud, and abuse are aided and abetted by keeping public records as far away from the public as possible.

    The reason news media and lawyers use it is because they can afford it. Open it to the public, and a lot more people will use it.

  • Andy Link

    I agree with Tasty.

  • CuriousOnlooker Link

    How about a compromise.

    The public gets access for free. But commercial users of the content have to pay – including subsidizing the free usage of it.

    This is a pretty common model in software.

  • Guarneri Link

    I’m all for transparency. That’s why I’ve asked my Congressmen to sponsor the Comprehensive Records Reform and Administration Policies Act. (The CRRAP Act). Government IDs will be issued and if you are classified a journalist or lawyer you will be charged each year a .5% wealth tax to fund digitization, and training and hiring of immigrants at a $60/hr living wage to conduct document searches. It’s green, reduces income inequality, let’s immigrants Dream, and makes the rich pay their fair share.

    I think it has a chance. I hear when AOC heard about it she thought it was “like, a super cool idea.”

  • The public gets access for free. But commercial users of the content have to pay – including subsidizing the free usage of it.

    I’d be satisfied with that.

  • PD Shaw Link

    One thing that’s not clear from the piece, or perhaps misleading, is that the first $15 in fees each quarter is waived, so that at $0.10 per page, the first 150 pages are free. Also, substantive court opinions are available for free on the court’s website.

    I’m not sure how one otherwise distinguishes commercial versus public, unless the government creates an application process.

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