The Administrative Office of the United States Courts (AO) announced on Friday that it would make reams of court records once again accessible through PACER, the federal courts' digital warehouse for its court files. Many advocates are cheering this decision. But we are not. It's a big missed opportunity to provide free access to this trove of court records.
Presumably the AO realized it had made a huge mistake last month when it abruptly removed access to thousands of “old” records from four courts of appeals and one bankruptcy court because access to the records was purportedly incompatible with the new electronic filing and retrieval system the AO was rolling out. Most of these records were not “old” at all. For one court, the Federal Circuit, the removal affected all records in closed cases filed prior to March 1, 2012. For the Second and 11th Circuits, the removal affected all records in closed cases filed prior to January 1, 2010.
Access advocates, including EFF, were understandably outraged by this action, especially given that it came without warning and no public discussion. And ultimately, members of Congress chimed in with their disapproval, including Sen. Patrick Leahy, the chair of the Judiciary Committee, who wrote a letter on Sept. 12 to Judge John Bates, the head of the AO, urging that public access to the documents be restored. Six representatives, led by Rep. Zoe Lofgren, made a similar request just yesterday.
But we also saw this as a unique opportunity for openness rather than as a strike against it.
For years, access advocates have railed against PACER because it is a fee-based service, charging 10 cents per page for search results and 10 cents per page for documents retrieved. Court documents and case files can be voluminous; these dimes quickly add up to prohibitive costs for researchers, historians, advocates, and anyone else without a large research bankroll. As a result, efforts to provide free access have sprung up, many of which we have written about before, such as Public.Resource.Org and Free Law Project. Several of these groups collaborated on RECAP, a Firefox and Chrome extension that allows PACER users to donate the documents they view to the Internet Archive, where they can then be accessed by other users without incurring fees.
The AO has always opposed such efforts. The free services compete with PACER. If those seeking to search and view court files used the free services instead of PACER, then the AO would reap less money in fees.
Thus the opportunity: with these records off PACER—for whatever reason—the AO had no financial interest in them and no argument to oppose free public access to these records. The AO could put the ex-PACER records online in bulk in a way by which they could be retrieved by third parties. These third parties could then make the records searchable and retrievable—for free. In fact, this is exactly what Public.Resource.Org and Free Law Project, using its CourtListener platform, suggested should happen in its August 27 letters to the affected courts. And perhaps such a move could set a precedent and encourage the AO and individual courts to regularly age their records off of PACER and make them freely available.
The restoration of access to these records through PACER is therefore coming at a significant lost opportunity cost. The AO once again has a fee-driven excuse to obstruct free access, and no incentive to facilitate free access.
Moreover, it is unclear exactly what access is being restored. The AO announced it is making the records available again by converting the docket sheets—the index pages for each case—to PDFs. These PDFs will presumably link to the court records. But it is unknown where the court records themselves actually reside, and what guarantees we have that access to them will be maintained. Moreover, by converting the dockets to PDFs, the searchability of the records will not be improved and could potentially be comically worse.
So we can't wholeheartedly cheer today's announcement. And it's one reason we'll continue to advocate for free access to court records and encourage lawyers and researchers to install RECAP to help build a free alternative to PACER.