It is a fundamental precept, at least in the United States, that the public should have access to the courts–including court records–and any departure from that rule must be narrow and well-justified. In a nation bound by the rule of law, the public must have the ability to know the law and how it is being applied. But for most of our nation’s history, that right didn’t mean much if you didn’t have the ability to get to the courthouse yourself.
In theory, the PACER (Public Access to Court Electronic Records) system should have changed all that. Though much-maligned for its user-unfriendly design, for more than 25 years PACER has made it possible for parties and the public to find all kinds of legal documents, from substantive briefs and judicial opinions to minor things like a notice of appearance. For those with the skill to navigate its millions of documents, PACER is a treasure trove of information about our legal system–and how it can be abused.
But using PACER takes more than skill–it takes money. Subject to some exceptions, the PACER system charges 10 cents a page to download a document, and that cost can add up fast. The money is supposed to cover the price of running the system, but has been diverted to cover other costs. And either way, those fees are an unfair barrier to access. Open access activists have tried for years to remedy the problem, and have managed to improve access to some of it. The government itself made some initial forays in the right direction a decade ago, but then retreated, claiming privacy and security concerns. A team of researchers has developed software, called RECAP, that helps users automatically search for free copies of documents, and helps build up a free alternative database. Nonetheless, today most of PACER remains locked behind a paywall.
It’s past time to tear that paywall down, and a bill now working its way through Congress, the bipartisan Open Courts Act of 2020, aims to do just that. The bill would provide public access to federal court records and improve the federal court’s online record system, eliminating PACER's paywall in the process. EFF and a coalition of civil liberties organizations, transparency groups, retired judges, and law libraries have joined together to push Congress and the U.S. Federal Courts to eliminate the paywall and expand access to these vital documents. In a letter (PDF) addressed to the Director of the Administrative Office of United States Courts, which manages PACER, the coalition calls on the AO not to oppose this important legislation.
Passage of the bill would be a huge victory for transparency, due process and democratic accountability. This Open Access Week, EFF urges Congress and the courts to support this important legislation and remove the barriers that make PACER a gatekeeper to information, rather than the open path to public records that it ought to be.