Nonprofit Reporters Lose PACER Fees Appeal

(CN) - Journalists who were denied a fee waiver to access federal court records online cannot appeal but may find success under new exemption guidelines, the 9th Circuit ruled Thursday.

Pursuing the federal Public Access to Court Electronic Records (PACER) website typically costs 10 cents per page, unless you qualify for a fee exemption. Eligibility for the waiver is discretionary, but largely determined by the federal Judicial Conference of the United States with assistance from the Administrative Office of the United States Courts.

The Judicial Conference's 2012 fee schedule and policy notes on exemptions included "indigents, bankruptcy case trustees, individual researchers associated with education institutions, courts, section 501(c)(3) not-for-profit organizations, court appointed pro bono attorneys, and pro bono ADR neutrals."

Jennifer Gollan and Shane Shifflett, journalists with the nonprofit Center for Investigative Reporting, had sought an exemption form PACER fees in April 2012 for a four-month analysis of "the effectiveness of the court's conflict-checking software and hardware to help federal judges identify situations requiring their recusal," according to the ruling.

U.S. District Judge James Ware initially granted the fee exemption for nonprofits but revoked it after reconsidering policy notes that warned against exempting members of the media.

Gollan and Shifflett argued that the policy notes allowed exemptions for members of the nonprofit media, but Ware was unconvinced. The journalists appealed to the 9th Circuit, but a three-judge panel dismissed on Thursday for lack of jurisdiction.

The denial is not appealable because it was an administrative order, not a judicial ruling, the panel found.

"If they initiate a civil action seeking to enjoin the fee schedule and policy notes under the Constitution, then that may well lead to a decision that we have the power to review," Judge Diarmuid O'Scannlain wrote for the panel.

The policy notes at issue were revised, however, for the 2013 fee schedule. As such, Gollan and Shifflett may be able to obtain a waiver for their project if they can prove financial hardship, O'Scannlain wrote in a footnote to the ruling.

"As was explained to us by the Administrative Office, a judge need not exempt a 501(c)(3) group under the new policy notes, although he should consider doing so since most not-for-profits have limited budgets," he wrote. "By the same token, a judge should approach an application for exemption filed by 'members of the media' with caution, since media organizations typically will 'have the ability to pay the fee.'"

"The Administrative Office has no objection to Gollan and Shifflett's reapplying in the district courts now that the fee schedule and policy notes have been revised," he added.

O'Scannlain also wrote a concurrence to his own opinion to address a question left unanswered by the dismissal: "to whom does one go for review when an application for an exemption from PACER fees has been denied?"

He said that the Judicial Council could only review such cases under "extraordinary circumstances."

"Assuming ordinary PACER-fee determinations are not reviewable by the judiciary's administrative apparatus, it will be up to Congress to decide whether to fashion an appellate review mechanism, or whether to leave them within the exclusive purview of district courts," O'Scannlain wrote.

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