The Public Access to Court Electronics Records (PACER) system is a decentralized system of electronic judicial-records databases.  Under federal law, the government is permitted to charge people fees to access records on PACER.  Today, those fees are set at 10 cents per page (with a maximum fee of $3.00 per record) and $2.40 per audio file.  In April 2016, three nonprofit organizations – National Veterans Legal Services Program, National Consumer Law Center, and Alliance for Justice – filed a class action complaint in the U.S. District Court for the District of Columbia, alleging that today’s PACER fees violate federal law because the fees exceed the cost to the government of providing documents on PACER.  In March 2018, the district court agreed, ruling that PACER fees violate the E-Government Act of 2002, and the government appealed to the U.S. Court of Appeals for the Federal Circuit.  CAC filed a friend-of-the-court brief on behalf of former Senator Joseph I. Lieberman, who sponsored the E-Government Act of 2002, in support of the plaintiffs.

Our brief argued that the government’s practice of charging fees that exceed the costs of providing access to the court documents is at odds with the text and history of the E-Government Act, as well as Congress’s plan in passing it.  To start, today’s PACER fees are at odds with the plain language of federal law.  Under 28 U.S.C. § 1913 note, the government is allowed to charge fees “only to the extent necessary” “to reimburse expenses incurred in providing [PACER records-access] services.”  Yet PACER fees today are “higher than the marginal cost of disseminating the information,” and some of these fees are used for projects far removed from providing document access on PACER.  Our brief did not question the merits of those other programs, but simply argued that federal law prohibits the imposition of PACER fees to fund them.  In addition, excessively high PACER fees impose a serious financial barrier to members of the public who wish to access court records, and these fees thereby create a system in which rich and poor do not have equal access to important government documents. Recognizing the inequity of such a system and the importance of public access to court documents, Congress amended the governing statute to include the “to the extent necessary” language and thereby made this information “freely available to the greatest extent possible.”

The U.S. Court of Appeals for the Federal Circuit affirmed the district court’s ruling, allowing PACER fees to be set “to the amount needed to cover expenses incurred in services providing public access to federal court electronic docketing information.”  This includes Case Management and Electronic Case Filing (CM/ECF) services, but not unrelated services such as courtroom technology, e-juror services, or notification services for local law enforcement entities.