PACER (law)

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PACER (acronym for Public Access to Court Electronic Records) is an electronic public access service of United States federal court documents. It allows users to obtain case and docket information from the United States district courts, United States courts of appeals, and United States bankruptcy courts. The system is managed by the Administrative Office of the United States Courts in accordance with the policies of the Judicial Conference, headed by the Chief Justice of the United States. As of 2013, it holds more than 500 million documents.[1]

Each court maintains its own system, with a small subset of information from each case transferred to the U.S. Party/Case Index server, located in San Antonio, Texas at the PACER Service Center, each night. Records are submitted to the individual courts using the Federal Judiciary's Case Management/Electronic Case Files (CM/ECF) system, and usually accepts the filing of documents in the Portable Document Format (PDF) through the courts' electronic court filing (e-filing) system. Each court maintains its own databases with case information. Because PACER database systems are maintained within each court, each jurisdiction will have a different URL.

PACER has been criticized for being technically out of date and hard to use, and for demanding fees for records which are in the public domain. In reaction, non-profit projects have begun to make such documents available online for free. One such project, RECAP, was contributed to by activist Aaron Swartz; his downloading activities were investigated by the federal government. Although no crime was committed and no charges filed, the government closed its program of providing free public access to PACER.

Available information[edit]

The PACER System offers electronic access to case dockets to retrieve information such as:

  • A listing of all parties and participants including judges, attorneys, and trustees
  • A compilation of case related information such as cause of action, case number, nature of suit, and dollar demand
  • A chronology of dates of case events entered in the case record
  • A claims registry
  • A listing of new cases each day
  • Appellate court opinions
  • Judgments or case status
  • Types of documents filed for certain cases
  • Many courts offer imaged copies of documents

History[edit]

PACER started in 1988 as a system accessible only by terminals in libraries and office buildings.[2] Starting in 2001, PACER was being made available over the Web.[2]

Costs, revenues and free alternatives[edit]

The United States Congress has given the Judicial Conference of the United States authority to impose user fees for electronic access to case information. All registered agencies or individuals are charged a user fee.

The fee, as of April 1, 2012, to access the web-based PACER systems is $0.10 per page. Prior to that the fee was $0.08 per page and prior to January 1, 2005, the fee was $0.07 per page. The per page charge applies to the number of pages that results from any search, including a search that yields no matches with a one-page charge for no matches. The charge applies whether or not pages are printed, viewed, or downloaded. There is a maximum charge of $3.00 for electronic access to any single document other than name searches, reports that are not case-specific, and transcripts of federal court proceedings.

In March 2001, the Judicial Conference of the United States decided that no fee would be owed until a user accrued more than $10 worth of charges in a calendar year. If an account does not accrue $10 worth of usage between January 1 and December 31 of a year, the amount owed would be zeroed. In March 2010, that limit was effectively quadrupled, with users not billed unless their charges exceed $10 in a quarterly billing period.[3] Beginning in 2012, the limit was $15 per quarter.[4]

Effective with Version 2.4 (March 7, 2005) of the PACER software, to comply with the E-Government Act of 2002, written opinions that "set forth a reasoned explanation for a court's decision" are supposed to be free of charge.[5] but are sometimes billed for.[6] In order to facilitate access to written opinions, the court system also provides them on CourtWeb,[7] which does not require PACER registration[8] but only has records from (as of Aug 2016) 30 courts.[7]

Fee revenues get plowed back to the courts to finance technology. The New York Times reported PACER revenues exceeded costs by about $150 million, as of 2008 according to court reports.[9] According to the Electronic Public Access Fee Schedule adopted by the Judicial Conference on 13 September 2011:[10]

Consistent with Judicial Conference policy, courts may, upon a showing of cause, exempt indigents, bankruptcy case trustees, individual researchers associated with educational institutions, courts, section 501(c)(3) not-for-profit organizations, court appointed pro bono attorneys, and pro bono ADR neutrals from payment of these fees. Courts must find that parties from the classes of persons or entities listed above seeking exemption have demonstrated that an exemption is necessary in order to avoid unreasonable burdens and to promote public access to information. For individual researchers, courts must also find that the defined research project is intended for academic research, and not for commercial purposes or internet redistribution. Any user granted an exemption agrees not to sell for profit the data obtained as a result. Any transfer of data obtained as the result of a fee exemption is prohibited unless expressly authorized by the court. Exemptions may be granted for a definite period of time and may be revoked at the discretion of the court granting the exemption.

A "policy note" attached to the Electronic Public Access Fee Schedule states:[10]

Courts should not exempt local, state or federal government agencies, members of the media, attorneys or others not members of one of the groups listed above. Exemptions should be granted as the exception, not the rule. A court may not use this exemption language to exempt all users. An exemption applies only to access related to the case or purpose for which it was given. The prohibition on transfer of information received without fee is not intended to bar a quote or reference to information received as a result of a fee exemption in a scholarly or other similar work.

Some courts such as the District Court for the District of Massachusetts have explicitly stated that "fee exempt PACER users must refrain from the use of RECAP".[11] In 2009, the Los Angeles Times stated that RECAP cuts into PACER revenue about $10 million.[12]

Fees are not charged against federal agencies providing services authorized by the Criminal Justice Act (18 U.S.C. § 3006A).[10]

Litigation over fees[edit]

In December 2015, Bryndon Fisher, a Seattle man, filed a class-action lawsuit in the U.S. Court of Federal Claims against the Administrative Office of the United States Courts,[13] alleging that PACER overcharges its subscribers by billing by the number of bytes generated instead of by page count, and by overcounting the number of bytes.[14] The case remains pending as of May 2017.[15]

In April 2016, three non-profit organizations—the Alliance for Justice, the National Veterans Legal Services Program and the National Consumer Law Center—filed another class-action lawsuit, in the U.S. District Court for the District of Columbia, against the Administrative Office,[16] alleging that the PACER fee structure did not conform to the E-Government Act of 2002, in that the fees were not only being used to maintain the system itself, but were being diverted to cover other costs of the federal courts, including courtroom audio systems and flat-screen televisions for jury use.[17][18] In January 2017, judge Ellen Huvelle certified the class action.[19] The case remains pending as of May 2017.[20]

In November 2016, another putative class action relating to PACER was filed in the United States District Court for the Southern District of Florida.[21]. The plaintiff there claims that PACER fails to provide its users with free access to “judicial opinions,” in violation of PACER’s contracts with its users as well as the E-Government Act of 2002. In September 2017, District Court Judge Robert N. Scola, Jr. denied the government's motion to dismiss the suit.[22]

Reception[edit]

The New York Times has criticized PACER as "cumbersome, arcane and not free".[9] In 2008, an effort led by Carl Malamud (who said that PACER is "15 to 20 years out of date" and that it should not demand fees for documents which are in the public domain) spent $600,000 in contributions to put a 50-year archive of records from the federal courts of appeals online for free.[9] In a critical article, the magazine Reason described the system as "archaic as a barrister’s wig".[23]

Also in 2008, district courts, with the help of the Government Printing Office (GPO), opened a free trial of Pacer at 17 libraries around the country. After activist Aaron Swartz, following an appeal by Malamud, downloaded about 2.7 million documents through a Sacramento library computer (less than 1% of the entire database, although the number has been stated incorrectly as 20% or 25%),[1][24] to make them freely available to the public on Public.Resource.Org, the experiment was ended in late September 2008, with a notice from the GPO that the pilot program was suspended, "pending an evaluation". In October, a GPO representative said that "the security of the Pacer service was compromised".[9] A FOIA request revealed later that the FBI had opened a full investigation against Swartz, which was dropped in April.[24]

In 2009, a team from Princeton University and Harvard University's Berkman Center created a software called "RECAP"[25] which allows users to automatically search for free copies during a PACER search, and to help building up a free alternative database at the Internet Archive.[2] An alternative service providing free access to PACER documents is PacerPro. PacerPro differs from RECAP in that it is a for-profit software company primarily designed to provide enhanced access to PACER documents.[26]

Other alternative sites republishing PACER documents include PacerPro,[27] DocketFish,[28] Caseflex,[29] Docket Alarm,[30][31] Inforuptcy.com,[32] justia.com,[2] the proprietary LexisNexis, which makes a copy of the whole database available,[24] PlainSite,[33] the United States Courts Archive,[34] and Google Scholar.[35]

See also[edit]

References[edit]

  1. ^ a b Lee, Timothy. "The inside story of Aaron Swartz’s campaign to liberate court filings". ars technica. Retrieved 8 August 2013. 
  2. ^ a b c d Bobbie Johnson (11 November 2009). "Recap: cracking open US courtrooms". The Guardian. London. 
  3. ^ EPA Fee Schedule Update (EPA = Electronic Public Access)
  4. ^ "PACER brochure: How PACER Works" (PDF). 26 March 2012. Retrieved 8 March 2015. 
  5. ^ "District CM/ECF Version 2.4 Release Notes". March 7, 2005. Retrieved January 29, 2013. 
  6. ^ "Electronic Case Filing | U.S. District Court - Middle District of Florida". ecf.flmd.uscourts.gov. 
  7. ^ a b "CourtWeb: Online Federal Court Opinions Information System". U.S. Courts. Retrieved January 29, 2013. 
  8. ^ "CourtWeb and Written Opinions". CourtWeb. U.S. Courts. Retrieved January 29, 2013. 
  9. ^ a b c d John Schwartz (February 12, 2009). "An Effort to Upgrade a Court Archive System to Free and Easy". New York Times. 
  10. ^ a b c "Implementation of the Electronic Public Access Fee Increase" (pdf). Retrieved January 24, 2013. 
  11. ^ "CM/ECF - USDC Massachusetts - Version 5.1.1 as of 12/5/2011-United States District Court". 
  12. ^ Michael Hiltzik: These crusaders bring transparency to government LA Times, September 28, 2009
  13. ^ Fisher v. United States, No. 15-1575, (Fed. Cl. September 26, 2016)
  14. ^ Williams, June (December 31, 2015). "Class Claims PACER Overcharges for Records". Courthouse News Service. Retrieved May 16, 2017. 
  15. ^ Fisher v. United States, no. 15-01575 (Fed. Cl. filed Dec. 28, 2015): docket via courtlistener.com
  16. ^ National Veterans Legal Services Program, et al. v. United States, no. 16-745 (D.D.C, filed April 21, 2016)
  17. ^ Sullivan, Casey C. (April 25, 2016). "PACER Fees Are Too Damn High, Class Action Alleges". Findlaw. Retrieved April 26, 2016. 
  18. ^ Barry, Kyle. "Alliance for Justice sues the Administrative Office of the U.S. Courts for charging excessive and illegal fees to access court records". Alliance for Justice. Retrieved April 26, 2016. 
  19. ^ Weiss, Debra Cassens (January 26, 2017). "Judge certifies class action claiming Pacer fees are too high". ABA Journal. Retrieved May 16, 2017. 
  20. ^ National Veterans Legal Services Program, et al. v. United States, no. 16-745 (D.D.C, filed April 21, 2016): docket via courtlistener.com
  21. ^ “D’Apuzzo v. United States of America”', 16-62769 (S.D. Fla. 2016)
  22. ^ Ampel, Celia (September 25, 2017). "Miami Judge Allows PACER Fee Lawsuit To Go Forward". Daily Business Review. Retrieved September 27, 2017. 
  23. ^ Beato, Greg (June 2012). "Tear Down This Paywall". Reason. Archived from the original on 3 July 2012. Retrieved May 14, 2013. 
  24. ^ a b c Ryan Singel: FBI Investigated Coder for Liberating Paywalled Court Records Wired.com, October 5, 2009
  25. ^ "RECAP The Law". 2015. Retrieved November 3, 2015. 
  26. ^ "What Others Are Saying". PacerPro. Retrieved November 3, 2015. 
  27. ^ "ABA Journal Article". American Bar Association. Retrieved February 21, 2015. 
  28. ^ "Dockets Done Right". Retrieved November 3, 2015. 
  29. ^ "Automated docket tracking and retrieval". Litigain. Retrieved November 3, 2015. 
  30. ^ McMillan, Candice. "Checking The Court Docket Manually Is So Outdated: Docket Alarm API". Programmable Web. Retrieved August 8, 2013. 
  31. ^ "Docket Alarm Docket Search". Retrieved November 3, 2015. 
  32. ^ Gleason, Stephanie (April 18, 2012). "New Website Launches Bankruptcy-Focused PACER Alternative". The Wall Street Journal. 
  33. ^ "The law is in plain sight". The Computer Corporation. Retrieved November 3, 2015. 
  34. ^ "United States Courts Archive". Franklin Archive. Retrieved November 3, 2015. 
  35. ^ "Google Project Shows Value of Open Judicial Records". 2009-11-20. Retrieved November 3, 2015. 

External links[edit]