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Congress moves to make federal court records free

Court reform advocates and members of Congress want the federal courts to stop charging the public fees for access to court records. Congress may be on its way to making that a reality.

Although the U.S. House of Representatives passed legislation that would make access to federal court documents free to the public, the bill is unlikely to pass the Senate this year, according to an advocate for the change.

Currently, the public pays more than $140 million a year to access federal court records through the online system, known as PACER for Public Access to Court Electronic Records. The system charges users 10 cents a page to view and download documents and dockets, and the fees can quickly add up, making the system prohibitively expensive for many. 

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Bipartisan bill passes House, introduced in Senate

Sen. Ron Wyden

To address this, the Open Courts Act passed the House in a voice vote on Dec. 8 and was subsequently sent to the Senate, where it was assigned to the Judiciary Committee. 

And on Wednesday, Sen. Rob Portman, R-OH, and Sen. Ron Wyden, D-OR, introduced a similar bill

“The PACER system is outdated and charges exorbitant fees to users,” Wyden’s office said in a news release. “This bill will reform PACER to solve these problems and ensure easy and free public access to federal government court records.”

But with the end of the year fast approaching, Gabe Roth of the court reform advocacy group Fix the Court, told Legal Examiner, “There isn’t enough time to pass a Senate bill and then work out the differences with the House.”

Roth said Congress will have to start all over in the next session, “but I’m confident we can pick up where we left off — that is, a House that’s in agreement to make PACER free should move forward and a Senate that’s achieved bipartisan support.”

Appellate court said PACER overcharges

A federal appellate court ruled over the summer that federal courts have been overcharging the public for using PACER and had been using some of the funds generated toward expenses the law doesn’t allow.

But the court ruling did not address what would be a reasonable fee, and the case was sent back to district court for further proceedings. The appeals court also did not set a deadline for a fee reduction.

Based on legal and Congressional budget filings, Legal Examiner estimated the court ruling would lead to a cost reduction of at least 21%.

Still to be determined in the court case, as well, is how much the government must refund to people who used PACER as far back as 2010, the time covered by the lawsuit, which was brought by the Alliance for Justice, the National Veterans Legal Services Program and the National Consumer Law Center in 2016.

According to Fix the Court, there are several differences between the PACER bill passed by the House and the one introduced in the Senate. The Senate bill mirrors an earlier House bill that underwent changes after negotiations with the Administrative Office of the Courts.

Bills are different

The House bill, for example, gives the courts until Jan. 1, 2026 to consolidate all federal court records into a single searchable system that is accessible to people with special needs. The system would be free to use.

The system aggregates an estimated 319 million legal documents from 94 district courts and 13 appellate courts. According to Wyden’s office, it has no uniform way of filing, tracking and saving case information.

The new system would be funded by entities considered PACER “power users,” or organizations that access large volumes of documents that would pay user fees.

The Senate bill would require the new system to be created in three years, instead of five. 

“PACER was intended to create a level playing field for small-time litigants, small business, civil society, journalists, and citizens who care about transparency in government,” Portman said. “However, with its frustrating interface and fees, PACER has done the opposite. The American people should have easy access to the court records of their country, and this bipartisan, consensus legislation will fix the problem once and for all by putting in place a free, streamlined system with an emphasis on security, accessibility, affordability, and performance.”  

Contact Elaine Silvestrini at Elaine@legalexaminer.com. Follow her on Twitter at @WriterElaineS.