Access to federal court records gets less free

By Kristopher A. Nelson
in September 2011

400 words / 2 min.
I had always hoped that PACER-which I hear runs a surplus anyway-would trend downward in price as the cost of delivering electronic access decreases. Instead comes the news that the price will rise by 25%, from 8 to 10 cents per page.

Note: this post is from 2011. Evaluate with care and in light of later events.

As someone aspiring to be a legal historian, I’m generally impressed by the increasing availability of free access to legal documents (thanks Google Scholar!). This is actually a worldwide trend (thanks WorldLII and friends!), which I am grateful for every time I try to do transnational legal research. I would argue that free–not just “open,” but truly freeaccess to raw legal materials is important for a functioning democracy that respects the rule of law. Transparent court proceedings and outcomes help bolster the credibility of the legal process (provided it is credible and functional, of course).

So it’s always been distressing to me that PACER, which provides access to federal court records beyond just the final decisions that Google Scholar (or even LexisNexis and Westlaw) specialize in. Sure, for most legal work, the final decisions matter the most, but for historians and other scholars, seeing the party materials and “raw” details of the cases provides useful data for analysis. I had always hoped that PACER–which I hear runs a surplus anyway–would trend downward in price as the cost of delivering electronic access decreases. Instead comes this news:

The cost of electronic access to court files through the Public Access to Court Electronic Records program, better known as PACER, will rise to 10 cents per page from the current 8 cents per page, the Judicial Conference said.

via Federal courts to hike records’ fees 25% – Josh Gerstein –

I suppose it’s a nice gesture that they will waive the fees if you spend under $15/year, and I suppose the role of grant money is to fund my access to such materials, but honestly, I don’t think this is a good trend. I suppose the courts were focused on for-profit lawyers–or more specifically, on extracting a bit of silver from those lawyers–when they considered the pricing for PACER, and I see their point. This is the kind of necessary decision when taxes don’t fully fund government infrastructure (like the courts), but I lament the move to extract more capital from what ought to be public records.

The trend should be towards more open government and open courts, not the reverse.

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