US Federal Court PACER Fees Litigation Decision Discussed

US District Court - Great Falls, Montana

We haven’t commented on the news from late March 2018 on the decision regarding the US Federal Court’s use of the fees collected for their PACER public records access systems.  We share some of our thoughts below.

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Per the current fee schedule, the PACER systems provide access to the case record and documents in the federal courts charge access at a rate of ten cents per page with a cap not to exceed the fee for thirty pages.  Audio files can be access at a flat rate of $2.40.  The fee schedule also provides information regarding possible exemptions such as pro bono attorneys and indigent litigants that the court may allow.  For more, a FAQ regarding PACER is available at https://www.pacer.gov/psc/faq.html

"The case we are discussing in this article was brought against the US Federal Courts as described in this pre-decision article on Quartz.com.

“ The case, which is seeking class-action certification, is being led by three nonprofits: the National Veterans Legal Service Program, the National Consumer Law Center, and the Alliance for Justice. Each group says it has downloaded documents from Pacer and incurred charges alleged to exceed the cost of providing the records. All say the setup violates the E-Government Act of 2002, which authorizes the judiciary to “prescribe reasonable fees”—and which the plaintiffs argue should limit the government to charge users “only to the extent necessary” to make the information available.”

In her decision, US District Federal Court Judge Ellen Segal Huvelle of the DC Circuit found that the use of fees collected by PACER could not be used for courtroom technology (although the cost digital recording systems might be OK).  The judge also decided that PACER fees should not be used criminal case history data sharing or jury systems. 

Judge Huvelle did however find that using PACER fees to fund electronic court filing and case management systems (CM/ECF) systems, infrastructure, and PACER itself were proper.  Courthousenews.com has a full article on the decision that explains in more detail. And, the full opinion is available here.

Some brief observations. 

First, technology costs money.  It is wonderful when the governmental policy bodies make technology financial investments for the good of the courts and public from the general tax funds.  But one has to recognize that none of these services are without cost for hardware, communications/network services, storage, software, and staff. 

Second, the US Federal Courts choose to benefit their users by not charging fees for their E-Filing service because of the revenue generated by PACER.  The state courts have not been able to adopt this same approach and in most cases, have done the opposite by charging for E-Filing but making record access free.

Third, courts have always been expected to generate revenue to offset the cost of their operations.  We wrote about this way, way back in 2011 in an article titled “Courts Have Always Charged Fees”.  And the online services are not a tax but a value-added service as we discussed in “Why E-Filing Fees Are Not a Tax” in 2013.

Therefore, the state courts have had to choose between charging for E-Filing services or by raising the court case fees to cover the costs.

It is our opinion that it is good the US Federal Courts will be able to continue to fund their electronic records technology initiatives for the overall benefit of the judiciary and legal system.