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.

  • Hey Greg,

    Thanks for your reasonable perspective on the issue. I disagree that PACER "may be one of the best government run resources available… from any branch of government." If you look at comparable services for other branches, they are far better. THOMAS, the Federal Register, the patent database, and EDGAR are all examples of systems which far exceed the utility of PACER — largely because they are free and open.

    You are right that part of the solution to the PACER fee problem is figuring out how to pay for some of the non-PACER items that it currently subsidizes. In some cases, these are critically important services that present a difficult dilemma. In other cases, it is baffling that that PACER fees are paying for them at all (eg: $9.7m to provide the free-to-creditors Bankruptcy Noticing System that allows them to monitor for bankruptcy filings by debtors). In other cases, charging higher non-PACER filing fees would be far more logical (eg: for funding CM/ECF). I've made these arguments in all of my public writing on the matter, so it's not as if Free-PACER advocates are ignoring the issue. When it comes to basic appropriations, the reality is that the Courts simply have not asked for additional funds. The Chairman of the Senate committee that oversees E-Government has suggested this directly.

    When it comes to actual costs, PACER could be run far more efficiently, as I outline at the end of my latest post. The problem is that the courts have not been motivated to pursue such cost savings because of the PACER cash cow. Budget pressure prevails across the government, and it has a way of motivating agencies to find efficiencies. PACER has provided counter-statutory insulation to this healthy pressure within a subdomain of the Judiciary. Until the current budgeting practices are fixed, the public interest in open access will suffer.

  • Schlomo McGill

    Greg —

    The only fee listed than is at all controversial (ie, not easily related to EPA funding) is the courtroom technology refresh. The rest are direct costs of the EPA efforts by the US courts. A lot of the confusion comes out of past year budgets where EPA expenditures were spread out among different categories so they looked "mixed" to casual observers. In the last year, these expenses (costs) have begun to be separated out and reported individually. For example, the telecommunications program in the US courts runs about $89M — about 10% of that is directly related to the PACER system (called PACERNet) and its support structures. This is where Schultze got a bit confused on the year-to-year expenditures. You cannot separate CM/ECF from PACER, since they are the very same system.

    There is an initiative (NextGEN) under way in the courts that will address some centralization issues, but in large part the proposed savings are not realizable (that's not to say there are not savings to be had).

    Also — remember free access to all CM/ECF filings (more than is available on PACER due to changes in the law last year) is available at the courthouse public terminals. No one is forcing anyone to pay for anything — but there is a cost for convenience. Some did argue for bulk access rates to be established early on in the most recent PACER design change (the emergence of CM/ECF), but it was difficult to justify an "equal access" argument when the richest got access to the most information for the least amount of money. Remember that most users of PACER pay nothing.

    Finally — funding PACER through appropriations is an attractive idea. The problem is there is no guarantee that appropriations will come in on time and in the amount needed from year to year. EDGAR, and the Patent database are listed as examples — but they are funded from user fees, too. Sure, THOMAS and the LOC will get funding every year — look who's allocating funds and who benefits from it's use….

  • I think that the question of which items are controversial is an exercise best left to the reader.

    I have a hard time believing that the Telecommunications line item ($8.7m in 2009, $25.3m in 2010) is truly all PACER-related, but if that's so then it's a very inefficient system or poorly negotiated contract. We have no way of knowing, because the only records available are those that I've extracted, which give no greater level of detail. If the courts want to try to justify their expenditures, they need to be far more transparent rather than rely on random anonymous blog comments by someone who appears to be an employee (or they could even provide me clarification when I ask them for feedback directly).

    CM/ECF is most certainly separable from PACER. While both services share the same infrastructure, CM/ECF is a free-to-use case management and filing service. As I noted in my blog post, the costs of building and running CM/ECF are necessary regardless of whether PACER exists. If usage fees must be charged, they are most logically charged to the users of the service in question, in proportion to the costs incurred.

    Electronic Bankruptcy Noticing is controversial for the reason I described above. The other minor projects, for a similar reason.

    In short, I think that everything other than the explicit PACER line items are controversial, and the PACER line items are controversial because they are so high.

    Incidentally, what you get for free if you go to the courthouse is the ability to view (but not print or digitally copy) case materials only for the district you are visiting.

  • Schlomo McGill

    Steve —

    Imaging EPA as a car… the PACER interface would be one of the front seats. Since seats do not need a chassis or engine (CM/ECF) or gas (fees) or highways (the PACERNet) or blinkers (notification), someone who only sees the seat can't imagine having to put any gas in the tank.

    RECAP is a sort of Potemkin PACER, built with supplies found in a construction project on public land. It looks great as long as you don't get close enough to look in the windows.

    As for telecommunications costs — yes, they do indicate a very inefficient and distributed system. Imagine 200 locations nationwide each with multi-meg, multi-homed connections — no DSL lines or cable modems will do — in a private network completely removed from the Internet. If you think you can do that (securely) for less then the Judiciary, you're probably in the wrong business.

    You also seem to be unaware of contract changes in 2010 (and perhaps a few years following) that will incur significant conversion costs. This was not a Judiciary initiative, but one forced on the Judiciary by changes in the Executive (try googling "Networx").

    Cm/ECF cannot be separated from PACER. When you say that it can, you lose credibility. PACER *is* CM/ECF. It's the very same system. It not only shares infrastrucure — it shares code and memory and disk space and network connectivity (would you suggest doubling the amount paid for EPA telecommunications to "separate" them?) and every thing else *except* the billing mechanism. You will never see changes in PACER until you see changes in CM/ECF — they are one in the same.

    I can see an argument for the courtroom technology refresh (though that program seems to have congressional assent) — everything else is *directly* EPA related. That includes notifying crime victims about hearings and other events related to the prosecution of those alleged to have done them harm.

  • Let’s try a more apt analogy. CM/ECF is the USPTO patent database. The patent database is essential to the well-functioning and efficiency of the USPTO. As a side-effect, it happens to get the raw patent data into a format that is easy and cheap to distribute. PACER is the USPTO’s public interface for disseminating that data (which, you will note, is provided for free to the public).

    The notion that the inefficient system “is how we were used to doing it in the era of paper,” or that it’s justifiable because “clerks have always had local control,” is hardly an excuse for perpetuating it. As long as we’re citing statute you might as well look up 28 U.S.C. 457. So what?

    I am familiar with the Networx contract. The real problem is that the Judiciary is not thinking about PACER as basic distribution of legal data (which would result in a radically different system structure) but rather as an excuse to cross-subsidize a behemoth national network.

    I am, unfortunately, intimately aware of the technical structure of CM/ECF (having designed parsers and had to fix them repeatedly to deal with the many evolving idiosyncrasies of CM/ECF — not to mention actually seeing source code when CM/ECF has certain errors and dumps source because of faulty programming). No need to lecture me. A more rational and secure PACER model would require some modest and straightforward API calls to be built into CM/ECF.

    Again, the sleight of hand of calling everything “EPA related” does not meet the statutory mandate.

  • "Finally — funding PACER through appropriations is an attractive idea. The problem is there is no guarantee that appropriations will come in on time and in the amount needed from year to year. EDGAR, and the Patent database are listed as examples — but they are funded from user fees, too."

    I forgot to reply to this. This assertion is incorrect. Point me to where EDGAR charges fees for public access. Likewise, the patent database has always been available for free when searching and downloading individual records. Bulk data *used* to require a fee, but that recently changed to free as well.

  • Sorry for the additional comment spam, but I realized that my comment about 28 U.S.C. 457 didn't make sense in context here because Schlomo posted a slightly edited version of their comment here, compared to the one on the recapthelaw.org blog. Over there, Schlomo mentioned Title 38a, Rule 45. It is indeed an interesting issue with respect to the clerk's custody of records (and the location of records), but by no means a blocking issue for implementing a more rational system.