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US Federal Courts Agree To Refund Fees They Overcharged People For Access To PACER

from the i'm-going-to-be-rich! dept

You may recall that, back in 2016, a lawsuit was filed against the US federal judiciary and how it charges for PACER. If you don’t know, PACER is the court system’s electronic filing/records system, that allows users to access documents in federal court. It looks and acts like it was designed in the 1990s, and charges absolutely ridiculous amounts to use. Every “page” costs $0.05, and that includes for any searches that you do (with a somewhat arbitrary definition of a “page.”) The problem is that the law that enables the judiciary to charge for PACER pretty clearly says that the courts can only charge “reasonable fees” and can do so only to the extent necessary to fund the PACER system itself.

But that’s not what happened. The judiciary turned the ridiculous PACER charges into a sort of boondoggle account to use on all sorts of other things. Some of that spending may have been useful (courts have admitted to spending it on flat screen monitors for juries, and “the latest audio technology”) but it’s still not what the law allows, and if those things are important, they should be allocated by Congress, not by misuse of PACER fees.

In 2017, the case became a class action. In 2018, the district court ruled for the plaintiffs, saying that the court system was overcharging via PACER. As the court said:

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 as they do not provide the public with access to electronic information maintained and stored by the federal courts on its CM/ECF docketing system.

In 2020, the US Court of Appeals for the Federal Circuit (CAFC) again sided with the plaintiffs and upheld the lower court’s ruling.

It seems that now, two years later, and six years after the case began, the federal judiciary has finally agreed to settle the case and refund PACER fees for many users. It has put together a 125millionfund,andwillrefundupto125 million fund, and will refund up to 125millionfund,andwillrefundupto350 for fees paid for PACER between April 2010 and May of 2018, and if there are leftover funds, it will be divvied up among those who paid more than $350 during that period. That should hopefully reimburse more casual users. It won’t be that big of a relief for really heavy PACER users, but it is still a big step in the right direction.

Of course, the judiciary is still charging the same basic fees for PACER. At least, for now. Congress has toyed with making PACER free to the public (which it should be, since these are public documents). Also, earlier this year, the judiciary also announced that it would… at some unknown point in the future… stop charging for searches (for some users, if they ever launch a new PACER).

The real solution, of course, is for Congress to step in and do the right thing: make PACER free for the public to use.

In the meantime, I’ll probably take the $350 owed to me for my PACER use and… spend it on FOIA requests that also should be free…

Filed Under: court filings, courts, federal judiciary, overcharging, pacer

Florida Courts Agree To Respect First Amendment, Allow Journalists Immediate Access To Filings

from the well-well-well-if-it-isn't-the-consequences-of-our-actions dept

Courthouse News Service takes home another win in the ongoing fight for the respect of the First Amendment.

For years, courts received filings printed on paper. Those filings were routinely made available to journalists almost immediately. Whatever processing needed to be done could be interrupted long enough to make copies for reporters. Nothing slowed down and the presumptive openness of the courts was preserved.

Then came the digital revolution. Receiving and creating digital copies should have made access even more immediate. For some reason, this, instead, created an excuse for courts around the nation to withhold documents for hours, days, or weeks, supposedly because some sort of intensive “processing” of 1s and 0s was occurring behind the scenes.

Converting near-instantaneous processing into delayed access has resulted in plenty of legal action. Courthouse News Service — obviously heavily reliant on timely access to court documents — has engaged in legal action in several states over this obvious bullshit perpetrated by court clerks.

The government (meaning the needlessly recalcitrant clerks) isn’t winning. In court-on-court action, courts are siding with the First Amendment and against court clerks who’ve turned their offices into unconstitutional fiefdoms.

Clerks in the state of Florida fucked around and found out. A settlement agreement presented to the court in the middle of last month has been approved by a Florida federal court, bringing an end to one of several Courthouse News lawsuits, and restoring a right to access filings to journalists.

With a population of 21 million, Florida joins the biggest state in the nation, California, and the fourth biggest, New York, in returning traditional access to the public record of the courts in the electronic era. A related First Amendment action is now pending in the second biggest state, Texas, with 29 million people, also seeking to reclaim the First Amendment right taken away under the cover of modernization.

The terms of the deal between this news service and Florida’s e-filing authority calls for Florida to give public access to new court filings “on receipt.” In exchange, Courthouse News agreed to give up its claim for attorney fees.

This settlement applies to the entire state, so even if fiefdoms crop up, they won’t last for long. Journalists and other members of the public seeking access to court documents won’t have to wait for long either. Various clerks may have erected arbitrary time frames for the release of filings, but the settlement the state of Florida agreed to mandates near-real time access:

The key language in the underlying agreement states: “In consideration for the time and expense incurred by counsel for CNS, the Florida Courts E-Filing Authority will implement a statewide public access system in the E-Filing Portal for nonconfidential circuit civil complaints to be publicly accessible upon receipt, **but in no circumstances to exceed five minutes.**”

This is a huge win for everyone who isn’t a court clerk harboring delusions of grandeur. It follows a decision in favor of Courthouse News Service delivered in June by this same court — one that said the “right to access is foundational to the function of our judicial system.”

This decision (and the settlement that followed it) may seem like obvious outcomes. But it took Courthouse News six years and an unknown amount of its own money to force the government to respect rights it promised American citizens it would not violate. Unfortunately, government entities prefer spending money to pay government employees to violate rights and force citizens to fund attempts to convert these rights violations into legally acceptable government behavior. Every step of the process requires citizens to pay governments to argue against what’s best for the (supposedly) represented.

That’s not what we were promised when this nation was founded. But a couple hundred years later, it’s what we’ve ended up with.

Filed Under: 1st amendment, access, court filings, e-filing, florida, public access, transparency

Appeals Court Revives First Amendment Lawsuit Against Maine’s Court System

from the speedier-processing,-longer-delays dept

Courthouse News Service, as its name would imply, relies heavily on court documents to create content. Over the past few years, however, random court clerks around the nation have suddenly decided the old way of doing things was no longer acceptable.

For years, reporters have been given access to filings the day that they’re filed. That method never resulted in lawsuits. The move towards electronic filing and processing has somehow been turned into an excuse to withhold filings until days after the documents were filed. This prevents Courthouse News and other journalists from reporting on filings until well after they’re newsworthy.

Courthouse News has sued several state court systems over these delays. Last summer, it obtained a precedential ruling in the Fourth Circuit. The Virginia court clerks being sued argued there was no right to access filed complaints until a judge had taken action on them. Not so, said the Appeals Court. It ruled that the First Amendment right to access documents begins when they’ve been filed.

A similar lawsuit targeting Maine court clerks has been revived by the First Circuit Court of Appeals.

The federal court of appeals for New England on Monday reversed a lower court’s dismissal of a case brought by Courthouse News over the Bangor clerk’s policy of withholding new court filings until clerical work is finished. The clerk in Bangor was holding new complaints for up to three days, by which time the news they contained was as stale as old bread.

As the Appeals Court opinion [PDF] notes, the move to electronic filing was used as an excuse to introduce new delays in providing access to the public.

When the Maine Supreme Judicial Court (SJC) piloted an electronic case filing system for the state’s trial courts, its original rules required court clerks to withhold public access to new civil complaints until three business days after at least one defendant had been served, resulting in delayed access, possibly for months.

That change led to this lawsuit. This led to the SJC changing the rules, presumably in hopes of having the lawsuit dropped. The alteration wasn’t much better.

Instead of delineating a new deadline, it now allows the public to access newly filed civil complaints after court clerks process them. The rules do not specify how quickly that processing must occur.

This new rule was interpreted by certain clerks to mean they could still withhold documents for days to weeks because of “processing.” Seeking access to documents resulted in some reporters receiving automated emails informing them documents would not be available for “up to 24 business hours,” a potential three business day wait.

The Appeals Court says the lawsuit can proceed. Enough has been alleged to move it forward, contrary to the lower court’s opinion. Whether more fact-finding will ultimately result in a win for the journalists is unclear. And the Appeals Court suggests abstention may actually be the way to go — sending this to the state court system to suss out.

But one comment from an Eighth Circuit Appeals Court judge handling another Courthouse News lawsuit sums up what defendants in multiple cases are arguing:

During the argument, U.S. Circuit Judge Ralph Erickson stated the case for traditional access better than any lawyer has.

“What we’re saying is, ‘Oh for about 230 years you could walk into a Missouri courthouse, into the clerk’s office, and say, ‘Hey, can I see what’s been filed today,’ and now all of a sudden you can’t, right?” Erickson said.

That’s what has been happening all over the nation. The fact that it’s only certain court clerks deciding it’s permissible to delay access suggests this isn’t about following the rules governing electronic processing. It’s about some clerks turning their offices into petty fiefdoms where the public serves the court system, rather than the other way around. The peasants will get their documents whenever their not-so-benevolent betters decide they can have them.

Filed Under: 1st anemdnet, 1st circuit, 4th circuit, 8th circuit, court documents, court filings, transparency
Companies: courthouse news

Providing Electronic Access To Public Records Is 'Expensive' And Other Government Excuses For PACER Fees

from the well,-if-you're-not-going-to-give-it-away,-i-guess-we'll-just-have-to-go dept

Steve Schultze at Freedom to Tinker wants to know why the general public is still being asked to pay for access to public records. Since these records are generated using tax dollars, a person would reasonably expect they would be free to access, especially since they're the ones footing the bill. Of course, reasonable expectations are shattered by government entities daily and PACER is no exception.

As Mike noted in 2011, the fees to electronically access PACER records continue to rise, even as costs drop, leaving most Americans locked out by prohibitive fees (and a less-than-intuitive user interface). Schultze notes that not only are these fees excessive, they very likely are illegal.

[L]et’s review the law. 28 U.S.C. 1913 (note) says:

“The Judicial Conference may, only to the extent necessary, prescribe reasonable fees… to reimburse expenses incurred in providing these services.”

Upon passing the E-Government Act of 2002, Congress noted its intent for the “only to the extent necessary” language:

The Committee intends to encourage the Judicial Conference to move from a fee structure in which electronic docketing systems are supported primarily by user fees to a fee structure in which this information is freely available to the greatest extent possible. For example, the Administrative Office of the United States Courts operates an electronic public access service, known as PACER, that allows users to obtain case and docket information from Federal Appellate, District and Bankruptcy courts, and from the U.S. Party/Case Index. Pursuant to existing law, users of PACER are charged fees that are higher than the marginal cost of disseminating the information.

The current fees are unquestionably greater than the cost of providing the services. Since passage of the E-Government Act, the cost of storing and delivering bits of data over the Internet has continued to fall precipitously, and the cost of PACER access has gone up by 42 percent.

To that end, Schultze has drafted a bill entitled the Open PACER Act, which provides for “free and open access to electronic federal court records.” The draft bill is dedicated to the memory of Aaron Swartz (whose “abuse” of a limited-time free access offer greatly helped give the RECAP project momentum) and is open for comment at openpacer.org. (Schultze himself assisted Swartz in this venture, putting together the Perl script for automating the PACER downloads. Shultze had plans for a “thumb drive corps” of volunteers to hit multiple libraries and utilize the free access to download millions of documents. However, Swartz struck out on his own, scraping PACER via Amazon cloud servers, leading directly to his first contact with the FBI.)

Now, we all know why we think these documents should be freely available. Now, it's time to hear from the judicial system. Schultze runs through the many reasons the government thinks we should keep on paying, summarized from a list of excuses fact sheet entitled “Electronic Public Access Program Summary: December 2012.” He compiles a list of 10, all worth reading (and mocking), but here are a few of the better (pejorative form) ones.

Excuse #1: “PACER is cheap”

Whether or not PACER is subjectively inexpensive is immaterial. The law says that the fees can only reimburse for the expense of the service, and the courts are charging more than that. End of story. Nevertheless, PACER is — subjectively — expensive. Although it costs “only 10 cents per page,” the system charges not only per page for documents, but per “page” of search results, and per “page” of docket listings. It is easy to quickly run up a huge bill unless you are looking for one particular thing and you know exactly how to find it.

10 cents per page might sound like a standard library charge for printouts or copies, but we're talking about electronic access, where accessing 1,000 pages has no discernible effect on the “cost” of retrieving the documents. And charging per page or search results or docket listings? That's like having a surcharge added to your restaurant check for “accessing” the menu before ordering. The ridiculous search results charge is even more insulting considering how poorly PACER's search function performs.

Excuse #6: “You can always go to the courthouse”

This is a good one. The Administrative Office will tell you that you can go to your local courthouse to access PACER records for free. Well, maybe not “local,” but you can go to the district, bankruptcy, or circuit courthouse and access PACER. Of course, you can only access records for that particular court. You can’t access other PACER records. You also can’t download the records. You can only view them. If you want to print them, that will be 10 cents per page. That’s not legal.

lol

No. Seriously. Dry-as-straight-vermouth-in-the-Sahara “lol,” the sort of laugh hastily assembled from equal parts of disbelief and disgust that inadvertently escapes you blindsided with the least helpful advice ever. Citizen: “I wish to electronically access several public records for free.” Administrator: “Do you own a car?”

Not only is this suggestion utterly worthless, it's the height of bureaucratic obtuseness. Equating “a drive to the courthouse” with “electronically accessing the total of the PACER system on my schedule” is the sort of logic only deployed by someone who wishes to appear helpful but not actually help anybody. To top it off, you can only search that specific location's documents and then MEMORIZE ALL PERTINENT INFORMATION or you're back to 10 cents a page. No downloading allowed. Beautiful.

Excuse #8: “There is a high cost to providing electronic public access”

Here is how the PACER system architecture works: every court runs its own local PACER server, with local support staff and a private leased network link to Washington, DC. Are you a system administrator? Are you an average citizen who has heard the word “cloud” in the past five years? Does this system architecture seem insane? It is. It is even more offensive in light of the fact that the GSA has had, for years, a streamlined government procurement system for cloud hosting. This system is certified at FISMA level 2 security, and is hosted in a “private cloud” for the government, which is good enough for the Department of Homeland Security. It is provided by companies like Amazon at only a fraction higher cost than their commercial offerings. The courts could host all of the PACER services in the cloud — tomorrow — for under $1 million per year. They could allow all of these local system administrators to control their own PACER installations. They could obtain greater cost savings (and security) by further consolidating PACER hosting and system administration. Of course, they feel no pressure to do so when they interpret the law to allow them to charge whatever they deem necessary.

No one's denying there are costs associated with providing electronic access. But a majority of those costs flatten dramatically once the documents are uploaded. Compare that to “driving down to the courthouse,” which ties up however many employees it takes to get you up and running on their local PACER service, not to mention staffers taking phone calls from those unwilling to cough up 10 cents a page for an updated docket listing.

Not only is the complaint about costs ridiculous, but taxpayers are being double-dipped for some of these fees. Taxpayers fund the generation of the documents, and as Schultze points out, PACER's largest users are also government entities. In 2009, the DOJ alone paid over $4 million in PACER fees. That's public money transferring from one government entity to another, while the taxpayer supports both the one handling “Accounts Payable” and the one handling “Accounts Receivable.”

Public access is a noble goal, but the PACER system as it stands now locks out many members of the public with escalating fees and an intimidating, counterintuitive interface. The priority has shifted from public access to making money. Hopefully, another push towards free availability will get the ball (re)rolling. After all, Joe Lieberman (of all people) asked this very same question all the way back in 2009. Four years later we're still waiting for an answer. And the longer we wait, the more we pay.

Filed Under: access, court filings, excuses, open access, pacer, steve schultze