We’ve written before about the appalling state of access to public court records, recently made dramatically worse by the decision of the Administrative Office of the Courts (AO) to effectively terminate electronic access to documents on PACER (Public Access to Court Electronic Records), the fee-based system administered by the AO for searching, viewing and downloading federal court records. The removal affects five courts, including four federal courts of appeals. As we wrote earlier, the AO should give them to someone who will make them available for free, and we know of a few organizations that will be more than happy to do so at absolutely no cost to the taxpayers.

PACER fee-based access has always been problematic in terms of erecting economic barriers to access to public court records. But if the documents are not on PACER, and are already digitized, giving them to another entity poses no threat to PACER’s economic model.

Now it looks like Congress has waded into the debate about access to these public records.

On September 12, the Washington Post revealed that Senator Leahy sent a letter to the Administrative Office of the U.S. Courts urging that access to archives of court documents be restored. The letter, which was obtained by the Washington Post and published by Free Law Project, stated:

Wholesale removal of thousands of cases from PACER, particularly from four of our federal courts of appeals, will severely limit access to information not only for legal practitioners, but also for legal scholars, historians, journalists, and private litigants for whom PACER has become the go-to source for most court filings…. Gi­ven the potential impact of the AO's recent decision, I urge that the AO take immediate steps to restore access to these documents.

Senator Leahy’s letter implies something that really should be explicit: the removal of these historic documents should be seen as a blow to access to democracy. The fact that a PACER account is required to view court records is already an unacceptable obstruction of access to public information. The United States Code is available for free online, as is the Code of Federal Regulations. The activities of Congress are likewise publicly available for free. Courts, as much as Congress and the President, influence the laws of this country. And yet, these historical records aren’t available online, even with an account on PACER.

We repeat our plea that the AO “restore access,” as requested by Senator Leahy, and give the removed documents to an entity that is ready and willing to make them freely available.

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