Bipartisan Act That Will Modernize And Make Access To Court Records Cheaper Progresses Through Senate

December 14, 2021

By a Biometrica staffer

Late last week, the Senate Judiciary Committee approved the Open Courts Act of 2021, sending it to the full Senate to consider. The Act seeks to “overhaul” the Public Access to Court Electronic Records (PACER) system that is run by the Judicial Conference of the United States, and make free the download of filings the public makes.

The Senate version of the bill was introduced in August by Senators Rob Portman (R-OH) and Ron Wyden (D-OR), while the House version was introduced by Reps. Hank Johnson (GA-04) and Darrell Issa (CA-50) on Nov. 4. PACER was established in 1988 by the Judicial Conference as a way to phase out the need to go to the local courthouse to access documents. Today, the system covers 200 federal courts and houses over 1 billion documents. 

At the moment, users of PACER have to pay $0.10 for every search they run and an additional $0.10 for every document they print or download (up to a cap of $3 with transcripts excluded). This has been termed as too costly for public information by many small businesses, individuals, law firms, and non-profits, though it is not prohibitive to the largest law firms nationwide. 

The Administrative Office for the U.S. Courts says it is still concerned about how the process of making PACER free will be funded. Last fiscal year, it was estimated that the judiciary would rake in around $142 million from PACER fees alone. Part of the funding, as outlined in the bill, will come from “high-volume PACER users” (those who spend more than $25,000 a quarter currently) and federal agencies, at least in the short term. Once the new system is up and running, annual agency fees and appropriations from Congress are expected to cover the operational costs.

The measure also calls for an update to PACER’s “tortuous” search system, saying it needs to be more modern while also remaining a secure and publicly accessible database for court records. Users of PACER include court staff; members of the bar; city, state, and federal employees; the news media; and the general public.

Around a month ago, the federal government settled a suit that had been filed by the National Veterans Legal Services Program, the National Consumer Law Center, and Alliance for Justice in 2016. The three non-profits alleged that the judiciary had, between 2010 and 2016, overcharged the public for access to the PACER system. Over that period, court documents say, the judiciary collected an estimated $923 million in PACER fees. The exact terms of the deal are not known, though officials said they hope to have an update early in the new year.

In August 2020, an appellate court ruled that the judiciary had used PACER fees to “improperly [cover] some of its expenses.” According to law, the revenue generated from PACER is supposed to be used to “support the ongoing operations, development, and maintenance costs associated with the electronic case management system and other systems.”