open courts act – Techdirt (original) (raw)

Free PACER Access Heads To The Back Burner Again As Legislators Pull It From 2023 Budget Bill

from the your-government-not-at-work dept

[INT: Midwestern living room, Christmas morning 2022]:

Children: Thanks for all of these consumer goods, Daddy. We know you mean well. But we just want to know whether we’ll ever see free access to federal courtroom documents in our lifetime.

Me: [long pause while stroking my magnificent beard] I don’t know, kids. I just don’t know.

[BELLS CHIME]

[ENTER STAGE RIGHT, a cloaked figure carrying a big book or something]: Let me show what life would be like if Breckin Meyer had never been born! [smoke effect]

Kids: Who?

Me: Whom.

Kids: Whom?

Cloaked figure: I’m sorry. I think I have the wrong address. Excuse me. [different smoke effect]

This dramatization of recent events omits or alters a few key details. I will correct those here:

1. My children are in their late teens and have not called me “Daddy” for more than a decade.
2. My children, despite their advanced age, have never accessed a federal court document, nor have they expressed any desire to do so.
3. I don’t have a beard, magnificent or otherwise.
4. Breckin Meyer is undoubtedly respected in his field.
5. “Who” is the correct response.

Back to the issue at hand. PACER — the federal system for online access to court documents — is a Web 0.5 abomination. Despite collecting millions in fees every year, the system has not seen any serious upgrades to elevate it to the bare minimum web users expect… like utilizing a functional search system, or fixing its habit of incorrectly calculating “pages” to the point of being sued.

For years, legislators have attempted to make PACER access free. And it definitely should be. After all, taxpayers have already paid for the creation of the documents and dockets the US Courts system feels comfortable charging $0.10/page to access as though internet users were burning through toner cartridges with every PDF download or docket page served up online.

The obscene amount the federal court system collects from PACER users is supposed to be used to update online systems and, believe it or not, lower costs for PACER users. That has not happened. Instead, the federal judiciary has used this windfall to make things better for those who physically show up at courthouses, purchasing big screen TVs and comfy chairs for those watching and/or overseeing these proceedings. Left out of the equation are the millions of Americans who pay in but never see the court machinery pay out.

The only entity standing between us and free PACER access is the federal court system. It has been the only one to argue (without evidence) that it would cost taxpayers billions to give those same taxpayers free PACER access. Legislators have yet to surmount this single barrier, suggesting free access isn’t the priority they claim it is when they author bills. (To be fair, legislators have a lot of issues to address at any given time. To be less fair [but perhaps more honest], legislators don’t have to pay for their PACER access, which means allowing these bills to die doesn’t affect their personal bottom lines.)

The judiciary has claimed free access would require an offset of nearly $2 billion a year. Researchers and legislators took a look at these claims and called bullshit. In their estimation, free PACER access would only result in a net loss of a little over $1 million/year. Roughly a year later, the Congressional Budget Office announced its findings. The CBO concluded it would actually make the government money to give free access to millions of Americans while only charging fees to PACER “whales,” which tend to be large corporations engaged in litigation and/or trawling PACER to scour documents filed in federal court by their competitors.

_Enacting the Open Courts Act would generate 175millioninnetrevenuesoveradecade,offsettingthe175 million in net revenues over a decade, offsetting the 175millioninnetrevenuesoveradecade,offsettingthe161 million in mandatory spending the bill would prompt_…

So, on one hand, we have a federal court system that truly loves buying TVs and couches with the money it’s supposed to be using to cut PACER costs for Americans. On the other, we have NGOs, legislators, First Amendment advocates, and members of the general public advocating for free PACER access. And we have a single, extremely self-interested party claiming it’s prohibitively expensive to serve up PDFs and search results in an era of dirt cheap storage and ubiquitous internet use.

Who would win?

Well, as Reuters reports, it would be the horse-sized duck, as personified by the US Courts system and legislators apparently unwilling to add a bill that would save the government money to the latest government spending bill.

U.S. lawmakers have left a proposal to make the federal judiciary’s PACER online court records system free out of a sprawling, $1.66 trillion spending measure unveiled on Tuesday, a setback for advocates as the current Congress nears its end.

Supporters of the Open Courts Act had been pushing to get the stalled, bipartisan legislation attached to the omnibus spending measure, which boosts overall spending on the judiciary by nearly 6% to $8.461 billion in fiscal year 2023.

Unfortunately, the Reuters report relies on “facts” delivered by the judiciary, which continues to insist it would cost millions to cede any ground to taxpayers. This self-serving estimate has been undercut repeatedly, and yet it somehow remains a reprinted talking point whenever free PACER access is up for debate. Reuters repeats it here, which does nothing but serve a judiciary that would rather rake in discretionary funds year after year, rather than increase the level of service it’s obligated to provide to the public.

I don’t know which legislators are to blame for this failure to push through an amendment that, at worst, would break even. But I’m going to blame somebody. This is unvarnished horseshit.

Rather than mandating changes to PACER, lawmakers in an accompanying explanatory statement said they would be expecting the judiciary to update them on its already-underway plans to modernize PACER and a related electronic case management system.

The US Courts system has had years to update PACER with the fees it collects. It hasn’t. All this statement says is that government business will continue as usual, which means PACER will still be an overpriced clusterfuck and that their constituents can expect to be charged ridiculous rates for PDF downloads for the foreseeable future.

There are several big issues the federal government needs to address. And maybe this one seems unimportant in that context. But to hold off on pushing this through reeks of laziness, if not cowardice. The US Courts system has yet to show it has any interest in improving PACER. And its math has been called into question multiple times. When a budget is passed, it makes sense to add efforts that may, at worst, break even. And legislators couldn’t even do that here.

PACER still sucks. It still costs too much. The system overseeing it is engaged in illegal use of PACER funds. But that’s the status quo legislators have decided to protect. I’m sorry, kids. For now, free PACER remains just as theoretical as a Breckin Meyer Golden Globes nomination.

Filed Under: free pacer, judiciary, omnibus, open courts act, pacer, us courts

House Passes PACER Bill As Budget Office Says It Will Cost Less Than $1 Million A Year To Provide Free Access To Court Documents

from the court-system-seems-to-have-embraced-Hollywood-accounting dept

We’re one step closer to free access to federal court documents. The House has passed the Open Courts Act of 2020, moving it on to the Senate, which will decide whether the bill lands on the president’s desk.

Yes, this sort of thing has happened before. And previous efforts have always died on their way to the Oval Office. But this one might be different. A growing collection of case law says the US Courts system has been overcharging users and illegally spending funds meant to improve the PACER system and, yes, lower the cost for users.

This latest effort has a bit more momentum than its predecessors. And that seems to worrying the US Courts, which has fought back with dubious assertions and even more dubious budget estimates. The court system claims it will cost at least $2 billion over the next several years to overhaul PACER and provide free access to documents. Experts say it will cost far less.

A group of former government technologists and IT experts dispute that figure. In a letter sent last week to the Judicial Conference of the United States, the group estimated the cost of a new system would be 10millionto10 million to 10millionto20 million over 36 months to build the system and between 3millionand3 million and 3millionand5 million annually to maintain and develop.

Even more damning is the Congressional Budget Office’s estimate. According to its report, fixing the system and providing free access to most users would cost less than $1 million a year.

On net, CBO estimates that enacting H.R 8235 would increase the deficit by $9 million over the 2021-2030 period.

The report says overhauling the system will cost around 46million.Butthatwillbeoffsetbyfeesthecourtsystemwillbeabletocollectfrom“high−volume,for−profitusers,”whichtheCBOestimatestobeabout46 million. But that will be offset by fees the court system will be able to collect from “high-volume, for-profit users,” which the CBO estimates to be about 46million.Butthatwillbeoffsetbyfeesthecourtsystemwillbeabletocollectfrom“high−volume,for−profitusers,”whichtheCBOestimatestobeabout47 million over the same period. After subtracting some expected revenue declines and indirect tax effects, the court system should net about $37 million over the next decade.

That should end the debate over cost but it probably won’t. For whatever reason, the court system continues to insist giving citizens free access to court documents would bankrupt the system. If it can find allies receptive to its bad math in the Senate, it could end this bill’s run.

But no one but the court system agrees with the court system’s math. It’s not just potential beneficiaries of free access providing much lower cost estimates. The government itself disagrees with this branch’s budgetary suppositions. Hopefully, the CBO and the tireless work of transparency advocates will finally push free PACER past the Senate and onto the president’s desk.

Filed Under: access to courts, congress, courts, judiciary, open courts act, pacer, transparency