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Senate group recommends free online access to federal court records

The proposed bill would make access to federal court documents free to users of the online PACER system.

WASHINGTON (CN) — The Senate Judiciary Committee pushed Thursday morning for the government to remove digital paywalls for online court records, opening free access to the digital document system known as PACER.

Short for the Public Access to Court Electronic Records system, PACER charges users 10 cents per page and a maximum of $3 per document. While these fees may seem small, court filings and dockets often range from dozens to hundreds of pages, and it is common for cases to drag out over the course of years. Gabe Roth, executive director of the Fix the Court, an advocacy group focused on federal court reform, said people and organizations following just one court case can easily rack up hefty fees.

For low-income defendants and small organizations, the fees can present an insurmountable hurdle when it comes to accessing federal court documents that are meant to be public.

Tackling this issue, a group of senators from both sides of the aisle co-sponsored legislation to modernize the record system's technology and remove online fees. Members of the Senate Judiciary Committee recommended Congress pass the Open Courts Act of 2021, also known as the "Free Pacer" bill, during a meeting Thursday morning.

"Big law firms have no problem, but these fees may be too expensive for individuals, small businesses, small law firms and non-profits to track litigation that impacts them and for some low-income individuals, the cost of assessing records can be so high that it may prevent them from going forward with a meritorious lawsuit," Committee Chairman Dick Durbin, a Democrat from Illinois, said.

"When PACER was thought of three decades ago, having digital access to court filings was revolutionary. No one was really thinking about that in 1988; people weren't really using the internet then," Roth said. "Now, the fact that you have to register, put in your credit card number and get quarterly charges to read public documents, it’s ridiculous. Times have changed and the judiciary needs to change with the times."

The legislation would also modernize PACER to streamline searches and update the program's technology, something that Durbin noted is already underway via the Administrative Office of the U.S. Courts.

"The PACER system is not keeping pace with reality and technology. Its search function is torturous. There’s no uniformity in filings," Durbin said.

Because the system includes documents from circuit and district courts with different jurisdictions across the country, Roth said there are no universal standards for naming cases, making it difficult for users to find all the documents they need.

"There’s no naming conventions, so sometimes the U.S. is being sued, sometimes the U.S.A. is being sued, there’s just a lot of issues that are I think very fixable," Roth said.

These technology and search updates will be paid for by a temporary fee on some of the highest volume PACER users and the federal agencies that rely heavily on the system. Once its running, the bill gives a three-year timeline for a transition. Operational costs will come largely from annual appropriations to the Administrative Office.

The House passed a version of the proposed legislation to make the online records service free to users back in 2019, but it has often fallen low on the list of legislative priorities, failing to become formalized law. The committee's recommendation on Thursday now paves the way for a Senate and House vote on the updated bill.

Demonstrating widespread bipartisan support on the committee for the new proposal, Ranking Member Chuck Grassley, a Republican from Iowa, and Senator Josh Hawley, a Republican from Missouri, spoke in support of the legislation.

“As someone who has had to use that search function — I’m a lawyer, this is something I was supposed to be doing in my job — if you are a normal person who is trying to access these records, it’s just about impossible," Hawley said.

Journalists and advocates in the legal field have long called on Congress to reform PACER and voiced frustration with the hefty fees for records that the public has a legal right to access as courts have repeatedly rejected assertions that journalists and other groups should have be exempt from the fees.

In 2016, a group of nonprofits filed a lawsuit in Washington, claiming the system charged users more to access records than it cost to operate the service.

A 2018 district court decision ruled in favor of the challengers, writing that the fees collected from PACER users should not be used to fund operate other courtroom technology, a decision upheld in 2020 by the Ninth Circuit.

But fees to use the system still remain.

"The thing is we don’t treat them like the contents of a public library, if you want to get ahold of a public court record, you have to pay for it," Hawley said.

Roth said he hopes the proposed legislation will fix the issues users have dealt with for years.

"There’s just a lot of issues that are I think very fixable and the U.S. courts have had an opportunity to fix it and modernize the system for years, for decades, and they haven't really done so in a satisfactory way, so it’s become clear in recent years that Congress needs to step in and step up, and that’s what they’re doing," Roth said.

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