I’m probably not going to be popular with my LAW.GOV friends with this post because I’m going to play the role of Devil’s Advocate and make the argument that they leave PACER alone… at least for now. My primary reason for leaving it alone is the fact that it may be one of the best government run resources available… from any branch of government. Secondly, like it or not, it is a revenue generating resource for the federal court system. I know… I know… you’re saying that it is a “public resource” and US citizens shouldn’t have to pay for access to information that is built upon the data submitted to the courts, by those citizens. However, there are a lot of things related to the courts that we pay for — court fees, jury fees, court copy fees, etc — this is just one more, and one that most people I’ve talked to say is the most reasonable fee that the court charges.

Perhaps in a perfect world the taxes we pay would fully support the court systems, and the need for filing fees and an .08¢ per page charge for PACER wouldn’t be necessary. But the last time I checked, the courts were still underfunded and there’s been no push from Congress to increase budgets or salaries. According to Steve Schultze’s working paper, PACER fees are covering court expenses that are not related to direct costs of maintaining PACER.

By 2009, the list of programs supported by PACER fees was further expanded, and expenditures on the non‐PACER items increased. “In fiscal year 2009, the Judiciary plans to use $106.8 million in EPA collections and prior‐year carryforward to fund public access initiatives including the following:

  • Public Access Services and Applications $17.7 million;
  • Telecommunications $8.7 million;
  • EPA Equipment $1.3 million;
  • CM/ECF Development, Operations and Maintenance $33.4 million;
  • Courtroom Technology Allotments for Maintenance/Technology Refreshment $25.8 million;
  • Electronic Bankruptcy Noticing $9.7 million;
  • CM/ECF Allotments to Courts $7.5 million;
  • CM/ECF state feasibility study $1.4 million;
  • Violent Crime Control Act Notification $1.0 million; and
  • Jury Management System Public Web Page $0.2 million.
    (hat-tip to Joe Hodnicki at LLB)

Schultze has a good idea for providing bulk access to court data for free, but argues that there is no statutory reason for the fees that are generated from PACER be used in non-PACER projects, such as upgrading technology in the courthouses and courtrooms of federal courts. Perhaps these charges should have never have been tied to PACER fees… but that ship has sailed. If the PACER fees go away, do you think that anyone in Congress has the backbone to bring a bill up to fund these services? My guess is “no”. So, what do you do with these expenses? Cut them? Drop them? Up the other fees associated with filing cases in federal courts? Create a new fee that charges attorneys that practice in federal courts to make up the difference? It is an issue that is tied to the free PACER argument, and it needs to be explained right along side of the benefits of open access to Federal Dockets.

Now if you’re thinking that I’m anti-free PACER, you’d be wrong. I was part of the Oklahoma Court project that created the Oklahoma Court Information System (OCIS) that created free access to a number of Court Docket systems throughout Oklahoma (although, my piece was maintaining the OSCN database). But even the idea of creating a free access system ran into some of the same issues that have to be addressed with PACER. Legacy systems, related fee structures, and other issues created a number of stumbling blocks (logistical and political).

We all like “Free”, but we also like a stable, adequately funded court system as well. I don’t mind if PACER becomes a free resource as long as there is a stable means of replacing the revenue that will be lost to the courts. Perhaps the courts should have never become addicted to the revenue generated by PACER… and  perhaps they should have never have started funding non-PACER activities with that revenue… but that’s where we are with PACER, and those issues have to be addressed and answered before we can make PACER a free resource.

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Photo of Greg Lambert Greg Lambert

Librarian-Lawyer-Knowledge Management-Competitive Analysis-Computer Programmer…. I’ve taken the Renaissance Man approach to working in the legal industry and have found it very rewarding. My Modus Operandi is to look at unrelated items and create a process that can tie those items together. The overall…

Librarian-Lawyer-Knowledge Management-Competitive Analysis-Computer Programmer…. I’ve taken the Renaissance Man approach to working in the legal industry and have found it very rewarding. My Modus Operandi is to look at unrelated items and create a process that can tie those items together. The overall goal is to make the resulting information better than the individual parts that make it up.