President Trump’s national emergency to build the wall isn’t the only wall we’re alarmed about these days. While the rest of the world accelerates toward innovation and increasing levels of openness, transparency, and access to information, the federal judiciary’s electronic records system is hidden behind a paywall. And it’s an exorbitant one at that.
Also known as the Public Access to Court Electronic Records system, PACER is intended to provide open access to public legal records. Clunky and antiquated user interface aside, PACER is anything but. Accessing PACER costs 10 cents per page, which quickly adds up. Per The New Republic, PACER brought in over $146 million in fees in 2016 -- despite the fact that it costs only a little over $3 million to run.
While many lawyers work for companies that are able to comp the costs, most other members of the public don’t enjoy the same benefits. For litigants who represent themselves, like academic researchers studying systemic issues in the judicial system, counsel for small businesses and solos, these fees make their jobs downright impossible.
Though exemptions for the fees exist, members of the media, oddly, are not. Which is even more strange when you consider their role in upholding democracy and the First Amendment through quality, accurate reporting and all that. Sounds pretty much like the opposite of “open access” to us.
The case for open access
Not all hope is lost for PACER to catch up to the 21st century.
According to The NY Times, a 2002 law allows -- but does not require -- PACER to charge for access. Furthermore, these fees should cost “only to the extent necessary” to pay for “services rendered.”
In 2016, three non-profits filed a class action lawsuit to challenge the existing PACER fee structure. Led by attorney Deepak Gupta, the case is currently on appeal. The case has seen support from retired judges, news organizations, civil rights groups, and even a sponsor of the 2002 law.
Earlier in September 2018, the Electronic Court Records Reform Act of 2018 was introduced to the legislature to eliminate fees for PACER. Whereas the prior 2002 law provided some ambiguity for the federal judiciary to charge whatever it wanted, this bill outlines that "all documents on the system shall be available... free of charge."
And, organizations such as the Pew Charitable Trusts, the Legal Services Corporation, and the California State Bar Tech & A2J task force signal that there is interest and momentum to make open access to the law mean just that -- open.
Records transparency: an ongoing issue in California
The federal judiciary isn’t the only institution with a storied history of charging for access to public records. Records transparency has become a hot topic in California, in light of its high rate of police officer killings.
While police violence in California is continually the subject of national and global contention, there’s still little to no public access to records on police shootings. Access varies by state, and California’s records have been particularly swept away into secrecy.
However, a new state law, the Public Records Act, recently made California public records on police shootings available. But the new law isn’t without resistance or fees of its own. For example, KTVU reports that Theresa Smith, whose son was killed by the police in Anaheim, attempted to request information under the new law. She received a bill for $3,000 to cover the cost of information. Similarly, the city of Burlingame charged over $3,000 to KTVU for access to records about a different officer.
What gives? These cities are citing National Lawyers Guild v. Hayward, which they argue provides the precedent to place “extraction costs onto the requesting party." While open transparency may be the goal, cases like National Lawyers Guild place limits on how much information is available, and at what cost
Local courts have also erected barriers. For example, the Los Angeles Superior Court charges $1 for pages 1-5 of a case document, $0.40 for any more pages after that, and a maximum of $40 per document.
Here at Trellis we support open access to law and are experimenting with artificial intelligence and machine learning to make that even easier. Where those with means are the parties with access to the law, justice can never be served. We hope to help lead the charge by providing the largest database of searchable superior court records at a price that isn’t cost prohibitive. While legal intelligence, analytics, and automation can be laid on top of the law for a price, the law itself belongs in the hands of the public