WASHINGTON (CN) — The House of Representatives passed a bill late Tuesday fulfilling the First Amendment promise of an open and public system of courts in America, affirming the long-standing tradition of access to new court records as soon as they are received and reducing the cost of those records online.
“The system shall make public court records automatically accessible to the public upon receipt of such records,” said H.R. 8235.
The Open Records Act codifies the First Amendment standard in place throughout the federal courts, which provide access to new filings as soon as they are received, which is when they are filed.
The bill’s language reflects the traditional standard of access reporters and the public were given to paper filings by the federal courts since time out of mind. The standard was memorably expressed by the federal official who oversaw the transition of the federal courts from paper to electronic filing.
“That means that all dockets, opinions and case file documents can be accessed world-wide in real time, unless they are sealed or otherwised restricted for legal purposes. This level of transparency and acces to a legal system is unprecedented,” said Michel Ishakian, former chief of staff for program services in the Federal Administrative Office.
The bipartisan legislation sponsored by Georgia Representatives Hank Johnson, a Democrat, and Doug Collins, a Republican, also requires the federal judiciary to provide free public access to court records online and modernize the court system so that, ideally, it will cost less to maintain.
The bill was launched out of the House Judiciary Committee in February, with its chairman Jerry Nadler, a New York Democrat, saying judiciary records via PACER, short for Public Access to Court Electronic Records, had “long lagged behind modern standards” of accessibility.
However, Gabe Roth, executive director of the court transparency group Fix the Court, told Courthouse News compromises were made between the federal administrative office and Judiciary Committee staff when drafting the final Open Courts Act of 2020. For example, while enactment of the legislation was originally planned for three years after its passage, Roth said administrative office negotiators lobbied for a five-year grace period.
The parties also compromised in determining what dollar amount “power users,” were required to spend before being forced to pay a per-page fee.
“The initial bill had a $25,000 power user cutoff, the [administrative office] suggested a $5,000 power user cutoff, and then the version that passed today was $6,000, so much closer to what the [administrative office] suggested,” Roth said.
As for new PACER features, Roth said both parties imagine rolling out a few new functionalities over time on top of PACER’s current functions. Much like the ship of Theseus — where ancient Greeks philosophized over whether a ship with replaced parts still remains the same vessel — PACER’s functions would be altered overtime.
While saying the bill was unlikely to be signed into law by President Donald Trump, Roth, a former journalism student, says the measure helps alleviate the restriction of court fees not just for Courthouse News staff and other legal news outfits, but for anyone tasked with reviewing court transcripts for school or in their line of work.
“It’s just one of those things, I know it’s something that doesn’t consciously impact our behavior day to day, but it definitely subconsciously impacts our behavior both in the reporting community and the nonprofit community,” Roth said. “And it’s a tax on our critical job and it just shouldn’t stand.”
The U.S. Court of Appeals for the Federal Circuit in August found PACER was too costly. The appellate panel ruled in line with a lower court decision that found the federal government was not permitted to spend an excess of $190 million for new court mechanisms. The ruling effectively relegated PACER to a boondoggle for the federal judiciary where funds were rampantly misspent.
The court pointed to Congress as a potential purveyor of a solution and on Tuesday the first step on that path unfolded in the House.
The next hurdle to modernizing PACER and ensuring greater public access lies with the Senate.
“It’s a great improvement,” Melissa Wasser, a policy analyst for the Reporters Committee for Freedom of the Press said in a phone interview Tuesday night.
While viewing documents on public terminals inside a physical courthouse is and has been helpful to everyday people eager to access records, Wasser said, it’s not necessarily the most reliable method. Especially, she noted, during the Covid-19 pandemic when many courts have either closed clerk’s offices or have drastically limited visits by scheduling staggered appointments to view documents.
Beyond removing fees, Wasser also said she thinks it is likely the new developments on access will stimulate better public comprehension of the American legal system.
“Sometimes people think they won’t understand what is in a court document but this access could change that and could improve that literacy,” she said.
The action by the House is without question a “huge victory” Wasser said but she also called for a tempering of expectations: There’s still time left for a wrench or two to be thrown into the works.
Since the measure was passed by voice vote, or under a simple yes or no, the bill in its exact form must pass the Senate and it must be done by the end of this congress. The president would then have to sign the bill into law for it to actually take effect and kickstart the arduous process of modernizing the court system.
But for now, there’s no companion bill to the Open Courts Act in the Senate. It took Representative Johnson five years of bipartisan negotiating in Congress around court access to see out Tuesday’s passage.
Without a companion bill, the hurdles involve taking the measure to the Senate Judiciary Committee, holding a hearing and marking it up or amending it. If anything changes in the text at that point, it would have to go back to the House in the Senate’s latest iteration. Then both bodies would have to agree on the new language. Then, finally, once that is agreed to, it goes to the president for signature.
Understanding how uphill the battle for public access has been, Wasser assumes this is likely how it will play out.
“We’re going to start the 117th Congress on January 3. There’s under a month for all of that to happen,” she said.
While some may take issue with the cost of the Open Courts Act, Wasser said that oppositional talking points delivered on the floor by Republican lawmakers Tuesday suggesting the bill costs taxpayers $2 billion are unfounded.
The Congressional Budget Office estimated the cost would run closer to $9 million and the difference of a $9 million drag on the deficit versus a $2 billion drag is quite different, Wasser noted.
Wasser said that any legislation to free up the courts to the public should contain clear language that would make the modernized records system fully searchable and on a platform that can be constantly upgraded.
“It doesn’t have to be an old system that stays an old system,” Wasser said.
The legislation shoots for a 2025 implementation deadline but the next administration could always say it needs more time.
“It’s not an overnight fix. I know a lot of people want that,” Wasser said.