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.
