In a nation ruled by law, access to public court records is essential to democratic accountability. Thanks to the Internet and other technological innovations, that access should be broader and easier than ever. The PACER (Public Access to Court Electronic Records) system could and should play a crucial role in fulfilling that need. Instead, it operates as an economic barrier, imposing fees for searching, viewing, and downloading federal court records, making it expensive for researchers, journalists, and the public to monitor and report on court activity. It's past time for the wall to come down.
The bipartisan Open Courts Act of 2020 aims to do just that. The bill would provide public access to federal court records and improve the federal court’s online record system, eliminating PACER's paywall in the process. This week, EFF and a coalition of civil liberties organizations, transparency groups, retired judges, and law libraries, have joined together to push Congress and the U.S. Federal Courts to eliminate the paywall and expand access to these vital documents. In a letter (pdf) addressed to the Director of the Administrative Office of United States Courts, which manages PACER, the coalition calls on the AO not to oppose this important legislation.
Passage of the bill would be a huge victory for transparency. Any person interested in accessing the trove of federal public court records that currently reside in PACER, from lawyers, the press, to the public, must currently pay a fee of 10 cents per page for search results and 10 cents per page for documents retrieved. These costs add up quickly, and have been criticized by open-government activists such as the late Aaron Swartz and Public.Resource.Org. As noted in the letter, which was signed by Public Knowledge, Open the Government, R Street, and the Project on Government Oversight, among others,
"It is unjust to charge for court documents and place undue burdens on students, researchers, pro se litigants, and interested members of the public – not to mention the journalists who cover the courts. The fairest alternative is not moving from 10 cents a page to eight cents; it’s no price at all."
The Open Courts Act of 2020 offers a clear path for finally making PACER access free to all, and should be supported by anyone who wants the public to engage more readily with their federal courts system. EFF urges Congress and the courts to support this important legislation and remove the barriers that make PACER a gatekeeper to information, rather than the open path to public records that it ought to be.
