House Passes Open Courts Act Targeting PACER Reform

Over adamant opposition from federal courts, the U.S. House of Representatives passed a bill on Tuesday, December 8, to make it easier for the public to immediately access court filings online at no cost. The public can currently access electronic court documents through Public Access to Court Electronic Records (PACER). However, to use the service, you must register as either a lawyer or a reporter to access court records that you are not a party to. In addition, PACER charges per use, up to $3.00 per document accessed. While anyone who accrues less than $30 in fees every three months doesn't have to pay, and it does not charge to access court opinions, it has long been a source of ire for lawyers and news organizations that report on court proceedings. The Department of Justice itself spends over $100 million on PACER every year.

In August, the Federal Circuit held that PACER was too expensive. That decision, combined with long-running efforts to make PACER free to use, led to the bipartisan Open Courts Act, which the House passed by voice vote. President Trump may not sign the bill before he leaves office, however, and it is not yet clear what the Senate will do, so the bill is by no means certain to become law.

A Revenue Generator for the Courts

That the federal judiciary is opposed to the bill is perhaps unsurprising, as it generates hundreds of millions in profit for the federal court system. Making up that amount of money may be difficult for an already financially strained court system. The courts argue that most revenue is taken in through big law firms and news organizations and that eliminating the per use fee will end up costing litigants. James C. Duff, director of the Administrative Office of the Courts, called the bill a "financial windfall" for big banks.

However, the courts' claims that modernizing PACER would cost $2 billion is disputed, with the non-partisan Congressional Budget Office estimating that it will cost $9 million the next few years, a pittance by any measure of federal spending.

For now, PACER is unchanged. Yet when members of Congress with as diverse viewpoints as Doug Collins (R-GA) and Hank Johnson (D-GA) co-sponsor a bill, there is clearly some momentum behind the idea.

Related Resources

• Journalists Win Big in Ninth Circuit Freedom of Information Act Appeal (FindLaw's U.S. Ninth Circuit)
• Picking up the PACER: New Tools, New Lawsuits (FindLaw's Strategist)