Friday, March 18, 2011

Courts Have Always Charged Fees

In an earlier CTB post we noted a presentation by Prof. Stephen Schultze and graduate student Tim Lee that criticized several aspects of the US Federal Courts approach to public access to court information and in particular, the fees that are charged by the PACER system.

PACER currently allows for several queries per month for no charge.  It is only when they exceed that number of queries that users are charged (a FAQ regarding PACER can be found by clicking here).   In brief, it is the presenter’s contention that all of the information should be made available to the public for free.  And they have taken action by creating the RECAP program to help in this effort.  Unfortunately, history does not support this.

The UK courts website notes on a web page, appropriately named, “Why We Charge” that the tradition of court fees reaches back “to the 13th century”.

 “Fees have always been charged to users of the courts. Originally, fees were paid directly to the judges of the courts, who kept them personally, for the work they carried out…

The County Courts Act 1846 saw the creation of the court system (mostly how we know it today) and the introduction of judicial salaries. The Act provided that court fees would cover the full cost of running the courts, and through this, the courts would be self-funding.

Court fees paid for judges, clerks, bailiffs and accommodation. However, in 1856, it was accepted that judges’ salaries, buildings and ancillary expenses should be met by the taxpayer and not the court user through fees.”

Thus history teaches that the courts were conceived to be a “fee-based-service” to the public.  And current fees in federal and state courts for filing, e-filing, and records production are in that tradition.

The financial difficulties that nearly every government currently face also severely restricts the ability of the courts to make new services such as E-filing and E-Access free to the public.  One possible reason is that it is difficult to receive funding via the legislative process because it is nearly impossible to estimate a specific return on investment (ROI).  In contrast, a private corporation can seek a loan or investment (scenes from the recent movie, “The Social Network” are particularly appropriate) to expand their business technology and hopefully make more profit.  The courts and government are asked to “prove a negative”; that by investing in technology that costs will either be maintained, decrease, or reduce staff. Since many courts have already had to reduce staff due to budget cuts, they are understandably resistant to make this promise.

That said, I don’t know anyone in the courts that wouldn’t like to make all of the public services free.    But here is the rub.  Access fees can also potentially serve as a barrier for misuse of the court information.  Some courts have experience embarrassment when they made data freely available online that in turn exposed personal information that could be used for identity theft and crimes.   A fee serves as a small barrier to those who are using the information for commercial use in credit and background checks but a significant one for those who wish to “mine” data for mischievous purpose.  And from a court’s view, allowing commercial access is not necessarily a bad thing since it shifts the search and network bandwidth load from the court’s to the private commercial systems.   In summary, an access fee for information has additional benefits to the courts aside from revenue.

Now this is not to say that information cannot be accessed for free.  Nearly every court has some type of public access terminal in the courthouse where a person can search and find information.  But online and “bulk” data poses a different set of issues that in turn cost the courts to address.  In that case, fees can be justified by need and tradition.

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