Congress should open the federal courts

Posted 12/21/21

Congress has a golden opportunity to make the federal judiciary more accessible to the public. 

A bill now making its way through the U.S. Senate, the Open Courts Act of 2021, would, among …

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Congress should open the federal courts


Congress has a golden opportunity to make the federal judiciary more accessible to the public. 

A bill now making its way through the U.S. Senate, the Open Courts Act of 2021, would, among other things, make federal court records freely available to the public; it would drop the current 10 cent-per-page fee now charged to most users by the Public Access to Court Electronic Records (PACER) system.

The Senate Judiciary Committee unanimously endorsed the legislation earlier this month in what was a big victory for anyone interested in what goes on within our federal court system.

“There’s no reason the American public should pay for public documents. The current cost to view or download a filing, 10 cents per page, might not seem like a lot, but it quickly adds up and has been a barrier to access to justice for too long,” Gabe Roth, the executive director of the nonprofit organization Fix the Court, said after the hearing.

As an example, just pulling up the docket of a complicated case — such as the suits that led to the relisting of the Greater Yellowstone Ecosystem’s grizzly bears — can cost you a couple dollars. Then be prepared to pay a couple more bucks to read each of the briefs or to check out the appeal now pending before the Ninth Circuit Court of Appeals.

The federal court system does allow access to up to $30 worth of materials for free — which reportedly covers about 75% of users — but a person can quickly approach that sum by simply digging into a couple cases. For the Tribune, tracking just the cases tied to Park County costs hundreds of dollars each year.

Across the country, the judiciary collects upwards of $140 million a year in fees, greatly surpassing the actual costs of operating the PACER system. Congress set up the fees as a way for the judicial branch to recoup its costs, allowing the courts to use the money to boost public access to federal court records. However, PACER fees have at times been used as a kind of slush fund.

Nonprofit law groups like Fix the Court — backed by a long list of media organizations and others — sued over the excessive PACER fees in 2016. In response, judges at the district court and at the appellate level concluded that the judiciary had misspent at least $192 million worth of fees between 2010 and 2016 — including on a $160,000 study of Mississippi’s court records system. That case is set to be settled soon and could theoretically result in some refunds. But it would be best if Congress would simply waive the fees.

The Open Courts Act does contain caveats. For instance, the courts would continue to charge so-called “power users” who access more than $25,000 worth of records per quarter; those are often companies that download records in bulk and then repackage and resell that data to others. The Administrative Office of the Courts has said that about 2% of users pay 87% of the fees.

But otherwise free access would be liberating for media organizations like the Tribune and any member of the public who wants to read what’s going on in our federal court system for him or herself. The Open Courts Act would also modernize the entire PACER system, something experts have been recommending for years.

Certainly, for all of its flaws, PACER is a good thing overall and we wish our officials in Wyoming would more quickly move toward offering a PACER-like system that offers quick and easy online access to state court records. But the fact is that PACER’s current fee system discourages research and incentivizes users to download as few documents as possible. That’s not a good model for ensuring a complete picture of our justice system reaches the public. Further, if we’re really looking to ensure that the public has the best possible understanding of our court system, it would be ideal if the federal courts began offering more audio recordings of court proceedings, because dockets and documents rarely tell the full story.

In the meantime, however, the Open Courts Act would be an excellent first step. Members of the Senate Judiciary Committee apparently agreed, with most of the panel’s members signing on as cosponsors by the end of this month’s hearing on the legislation, according to reporting by Reuters. We hope our Congressional delegation — made up of U.S. Sens. John Barrasso and Cynthia Lummis and U.S. Rep. Liz Cheney — will back this legislation, too. It would be particularly useful in Wyoming, where most residents are far from their nearest federal courthouse, reliant upon PACER and its fees.