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Is Open Access Equal Access? PACER User Fees and Public Access to Court Information

Moreland, John, Is Open Access Equal Access? PACER User Fees and Public Access to Court Information (2021). “Is Open Access Equal Access? PACER User Fees and Public Access to Court Information,” DttP: Documents to the People, 49, no. ¾ (Fall/Winter 2021): 42-48, Indiana Legal Studies Research Paper No. 484, Available at SSRN:

“Our country has a long history of striving for openness and transparency in government processes. In 1978, the United States Supreme Court held, “It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.” Long before America’s high court recognized this common law principle, court records were historically accessible for inspection by lawyers, journalists, land title companies, credit agencies, academics, and members of the general public. These individuals were also permitted to take notes as a part of their right to inspect court documents. Having free access to copies (i.e. reproductions), however, was a completely different matter. Unlike the right of free inspection, the right of free copies did not exist, and copies of court records could be extremely expensive to citizens seeking the information. For example, in 1853, a copy of a court document was ten cents a page, a steep price for the mid-nineteenth century. One could even make an argument that the right to simply inspect court documents was not actually “ free” for many, due to the associated travel costs of physically going to the courthouse in an era before mass transportation and the internet. Thus was the state of public access to court documents for several generations. However, with the advent of computers and the internet came new implications for information dissemination to the public and the judiciary. Today, US federal court documents are publicly accessible through PACER (Public Access to Court Electronic Records), the online access portal that “provides electronic public access to federal court records. PACER provides the public with instantaneous access to more than 1 billion documents filed at all federal courts.” These publicly available court records include dockets, court opinions, searches of case-related information, information about the status of a case, and audio files of court hearings. Despite the free accessibility of PACER to the public, registered users are charged ten cents per page. Another barrier is that one has to register to even search PACER’s records. In 2010, Adrienne A. De Witt, then an MLS candidate at Indiana University School of Library and Information Science, published an article for DttP: Documents to the People in which she introduced PACER and its access fees, gave a brief explanation as to why the controversy is relevant to government documents librarians, and considered potential privacy issues surrounding the topic. While questioning whether PACER’s fee-based system constitutes free public access to court documents, De Witt argued that there needs to be a balance between “the right to full and open electronic access and the right to protect personal information” but “perhaps the paywall is [the] most effective means of protecting private information. ”The purpose of this paper is to build upon De Witt’s 2010 article and consider the litigation and legislative efforts that have since been made to reduce or even eliminate PACER’s fee policies. It will trace the history of the US government’s Electronic Public Access program and the creation of PACER, the legislative history of PACER’s fees, the Electronic Court Records Reform Act of 2018, and the Electronic Court Records Reform Act of 2019, both designed to eliminate PACER’s fees, and various class action suits filed against the Administrative Office of US Courts. This paper strikes at the heart of our country’s long history of striving for permanent public access to government information by examining how courts and lawmakers have defined, and often limited, what “public access” really means in the context of disseminating court information to the public.”

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