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PACER Court Records ‘Can Never Be Free,’ Judge Says (1)

Sept. 26, 2019, 9:35 PMUpdated: Sept. 26, 2019, 11:17 PM

Making the judiciary’s electronic filings free to the public without an alternative funding source likely would result in steep court fee increases for litigants and hinder access to justice due to cost, a federal judge told a congressional panel Sept. 26.

Judge Audrey Fleissig of the U.S. District court for the Eastern District of Missouri also said in testimony for the House Judiciary Committee’s Subcommittee on Courts, IP, and the internet that shifting costs away from users without another funding plan would burden courts with new costs.

“Our case management and public access systems can never be free because they require over $100 million per year just to operate,” Fleissig said. “That money must come from somewhere.”

Fleissig and Judge Richard Story of the Northern District of Georgia appeared before the House panel on behalf of the Judicial Conference, the policy making body for the U.S. court system.

The hearing agenda also covered the controversy over cameras in the courtroom, and the proliferation of sealed court records. But the prospect of free electronic records got immediate attention.

PACER, which processed more than 500 million requests for case information last fiscal year, has come under fire with critics arguing the pay system hinders public access to the federal courts. It’s the subject of an ongoing litigation and there is legislation pending in Congress to eliminate fees.

But Fleissig said that no additional federal appropriations have been proposed as part of any change to the system, and that shifting the cost burden to litigants without alternative funding would increase barriers to filing suit and hinder access to justice.

“The judiciary has serious concerns about the removal of the current funding mechanisms with no replacement source of funds,” she said.

Fleissig said preliminary figures show that court filing fees would go up by about $750 per case to “produce revenue equal to the judiciary’s average annual collections under the current public access framework.” That could, for example, drive up the current district court civil filing fee from $350 to $1,100, she said.

Approximately “87 percent of all PACER revenue is attributable to just 2 percent of users—large financial institutions and major commercial enterprises that aggregate massive amounts of data for analysis and resale,” the Administrative Office of the U.S. Courts said.

Litigants currently get free access to their records, while individuals, media, and non-profits are eligible for fee waivers through judicial requests. The Judicial Conference said this month that it was doubling the quarterly blanket fee waiver for users from $15 to $30.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com