PACER or Public Access to Court Electronic Records is a government run website that allows anyone to make an account and access court records electronically. This data is pulled from CM/ECF an electronic filing system that, according to a 2014 annual report, 13 courts of appeals, 94 district courts, 90 bankruptcy courts, and other specialized tribunals use. The issue many have with PACER is that you must pay to access court these records.

PACER fees are 10 cents per page (not to exceed the fee for 30 pages) and $2.40 per audio file. If you want documents printed at a local courthouse that’s going to cost an additional 10 cents per page. There are also Service Center fees if you want PACER to find a document for you rather than searching yourself. PACER fees don’t kick in though until you’ve accrued $30 worth of charges within three months. All judicial opinions are free.

There is currently a lawsuit in the US Court of Appeals for the Federal Circuit over what essentially boils down to the question: are PACER fees too high? Currently the court charges the above fees and uses the revenue generated to maintain the PACER database. If other funds are generated above that operating cost the funds can be used for other court related costs. This isn’t a little bit of money we’re talking about. PACER in 2016 generated $146.4 million dollars while annual expenses for the database were about $24 million. This dollar amount though ignores any upkeep that isn’t PACER directly. PACER fees also go in to maintaining CM/ECF the electronic filing system many courts use, courtroom technology, court websites, electronic notices including bankruptcy and juror notifications, and cybersecurity.

Still, most people accessing PACER are never charged because they don’t reach that $30 accrual.  In 2011 the government disclosed that 70% of people using PACER were not charged for using the service either through waivers or by not reaching $30 in 3 months (and this is back when the quarterly usage ceiling was only $10). Additionally, court dockets can be viewed free of charge at local courthouses.

So, who is getting changed for using PACER? It is the users accessing large amounts of case briefs. Those include law firms and big databases like Westlaw, Lexis, and Bloomberg who pull their data directly from PACER.

The big databases are using PACER data to better sell their services. Westlaw has Dockets on Westlaw, Lexis has Courtlink, and Bloomberg has Docket Key. It can be argued that since most law firms have access to at least one of these databases they too are getting dockets for “free” (minus the cost of what the database is charging of course). To these heavy users 10 cents per page is a drop in the bucket for maintaining the PACER database and ensuring the court has the resources to keep this information flowing.

When I began formulating this post I was firmly on the side of open data. I’m a librarian after all – I want free access to government information, transparency, and the ability for pro se litigants to easily access what they need. PACER fees are not harming this type of user. They’re charging those at the top of the food chain that want government data for free.

And something about that doesn’t feel right to me.

I think there is more nuance to this court case than I originally expected. I started writing this blog post so I can learn what all the “fuss” was about – and it turns out there is a lot to fuss over!

I’m curious to see how everything will shake out and what ramifications we’re going to see for PACER and the courts. I have a feeling this case is going to change a lot regardless of the outcome and PACER won’t be able to continue running as it has been since the early 1990’s.

If you want to get caught up on what’s going on with PACER I recommend these resources:

• https://www.politico.com/news/2020/02/03/judicial-records-pacer-refund-110597
  https://www.uscourts.gov/services-forms/fees/electronic-public-access-fee-schedule
• https://www.washingtonpost.com/local/legal-issues/should-the-public-pay-a-dime-for-access-to-court-records/2020/02/02/578fa488-42d1-11ea-b5fc-eefa848cde99_story.html
• https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2016cv0745-89
• https://qz.com/283772/why-pacer-should-and-should-not-be-like-edgar/
• https://www.pacer.gov/psc/faq.html
• https://en.wikipedia.org/wiki/PACER_(law)
• https://free.law/pacer-facts/
• https://www.supremecourt.gov/publicinfo/year-end/2014year-endreport.pdf
• https://qz.com/800076/the-cost-of-electronic-access-to-us-court-filings-is-facing-a-major-legal-test-of-its-own/