Federal Court records are organized and made available through the PACER (Public Access to Court Records) system, which requires users to sign up for an account and charges ten-cents-per-page for electronic access to records. The federal courts are allowed to charge for this access under a 2002 law (the E-Government Act) that permitted the courts to recoup costs “only to the extent necessary” to pay for “services rendered.” How this phrasing should be interpreted is at the root of a class action lawsuit filed by the National Veterans Legal Services Program, the National Consumers Law Center, and the Alliance for Justice. In their suit, the plaintiffs claim that the federal courts have charged higher than necessary fees to access PACER. In making their case, the plaintiffs have pointed out that PACER-related fees have been used to buy flat screen televisions and audio systems.
As the case now stands, the U.S. Court of Appeal for the Federal Circuit is reviewing a decision by the U.S. District Court for the District of Columbia, which ruled the Administrative Office of the U.S. Courts lawfully covered the costs of certain programs with PACER fees, but impermissibly paid for other programs with PACER fees. If upheld on appeal, the DC District Court decision could lead to refunds for PACER users and changes in the way users are charged for PACER access.
You can find the website related to the class action here. Find a very interesting amicus brief filed on behalf of E-Government Act sponsor and former U.S. Senator Joseph Lieberman here. Finally, see Adam Liptak’s “Sidebar” column on PACER access in The New York Times. And, just to give you a sense of how serious an open records issue this has become, check out this editorial in The New York Times. Suffice it to say that it’s not often you see editorials on access to public records.