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PACER Fees Shouldn’t Fund Most Court Tech, Judge Rules

Thirty years after federal courts began offering online access to litigation records through the PACER system, a federal judge ruled Saturday that fees paid by the public for such access cannot fund other courtroom technologies.

WASHINGTON (CN) - Thirty years after federal courts began offering online access to litigation records through the PACER system, a federal judge ruled Saturday that fees paid by the public for such access cannot fund other courtroom technologies.

The National Veterans Legal Services Program, National Consumer Law Center and Alliance for Justice brought the underlying challenge in Washington as a federal class action, accusing the Administrative Office of the U.S. Courts of charging PACER users more than what was necessary to operate the system, in violation of the E-Government Act of 2002.

Short for Public Access to Court Electronic Records, the PACER system charges anywhere from 10 cents to $3 for most searches, page views and PDF downloads.

Between 2010 and 2016, U.S. District Judge Ellen Huvelle noted in her March 31 ruling, the judiciary raked in some $920 million in PACER fees. The fees were divided into two categories: congressional priorities and program requirements.

The judiciary failed to persuade Huvelle that fees collected under the latter category can be used for anything related to "disseminating information through electronic means."

"It is not entirely clear to the court how the defendant arrived at this definition," Huvelle wrote.

While Huvelle found that digital-audio equipment was a legitimate courtroom-technology expenditure, her ruling lists several other impermissible uses.

"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," the ruling says, using an abbreviation for the case management/electronic case files system.

Digital-audio equipment on the other hand allows recordings to be made during court proceedings and then made part of the PACER electronic docket.

"The court rejects the parties’ polar opposite views of the statute, and finds the defendant liable for certain costs that post-date the passage of the E-Government Act, even though these expenses involve dissemination of information via the internet," the 42-page ruling says.

Among other misuses of the funds, the ruling highlights a study that "provided software, and court documents to the state of Mississippi” so that the state could provide public electronic access to its documents.

"It is apparent from this description that this study was not a permissible expenditure since it was unrelated to providing access to electronic information on the federal courts’ CM/ECF docketing system," the ruling says.

Huvelle also found that the federal judiciary misused PACER fees to fund a program that notifies local law enforcement agencies electronically "of changes to the case history of offenders under supervision."

"While this program disseminates federal criminal case information, and its outcome may indirectly have some benefit to the public, it does not give the public access to any electronically stored CM/ECF information," the ruling says.

PACER fees cannot be used to fund a juror-management system either, the court found.

While the challengers said the government should charge only enough to cover the marginal cost of operating the system, Huvelle chided them for basing this point on a 2002 Senate committee report that mentioned an alternative fee structure.

"In the end, a single sentence in a committee report, which has been taken out of context, is not enough to persuade the Court that Congress intended the E-Government Act to impose a specific limitation on the judiciary’s collection and use of EPA fees to the operation of only PACER," the ruling says, abbreviating electronic public access.

As quoted in the ruling, the line from the report at issue said: "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.”

Jonathan Taylor, an attorney for the nonprofit groups with the firm Gupta Wessler, has not returned a voicemail seeking comment on the ruling.

The Department of Justice also has not responded to a request for comment.

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