October 2, 2022

Judge Declares Some PACER Fees Illegal but Does Not Go Far Enough

Five years ago, in a post called “Making Excuses for Fees on Electronic Public Records,” I described my attempts to persuade the federal Judiciary to stop charging for access to their web-based system, PACER (“Public Access to Court Electronic Records”). Nearly every search, page view, and PDF download from the system incurs a fee ranging from 10 cents to $3 (or, in some cases, much more). I chronicled the many excuses that the courts have provided for charging what amounts to $150 million in fees every year for something that should—by all reasonable accounts—not cost much to provide.

I thought the courts were violating the law. I suggested that someone file suit. Two years later, the good folks at Gupta/Wessler did (in partnership with Motley Rice). Yesterday, Judge Huvelle of the US District Court for the District of Columbia agreed—in part. You can read her opinion here, and see all documents in the case here. Under her ruling, approximately $200 million will likely be returned to people who paid PACER fees from 2010 to 2016. This is good, but not good enough.

It also does not address the larger constitutional issues that I raise in my forthcoming paper, “The Price of Ignorance: The Constitutional Cost of Fees for Access to Electronic Public Court Records.”

Judge Huvelle is a good and fair judge. She rejected the reasoning of both the plaintiffs and the defendants (the Judiciary). Instead, she substituted her own analysis. Unfortunately, her analysis was both legally and technically flawed. Under her ruling, PACER fee-payers will not recover another $750 million (or so) of fees that I think are unlawful. The rest of this post explains why, and what might be next.

[Read more…]

Reflecting on Sunshine Week

Last Wednesday evening, I attended the D.C. Open Government Summit: Street View, which took place at the National Press Club in conjunction with Sunshine Week. The Summit was sponsored by the D.C. Open Government Coalition, a non-profit that “seeks to enhance the public’s access to government information and ensure the transparency of government operations of the District of Columbia.” The Summit successfully focused on two main ideas – using government information to innovate and using government information to inform. I left the Summit encouraged by the enthusiasm for innovation and transparency in the attendees and among some District of Columbia government leaders, but also discouraged because there was a consensus that Washington, DC is still far behind cities such as New York, Kansas City, and Boston in using technology for innovation in government and there is not a vision or financial commitment from the Mayor’s office to facilitate government-wide progress.
[Read more…]

Local Expertise is Exceedingly Valuable- Principle #7 for Fostering Civic Engagement Through Digital Technologies

One of the most rewarding and enjoyable aspects of my research has been my series of conversations with innovators in civic engagement in various cities across the country. These conversations have been enlightening for me as I think about how Washington, DC can maximize its natural advantages to foster civic engagement in its neighborhoods. The ways in which a local community uses technology to share information and solve urban problems reflect its character.

Two of the conversations that have helped shape my thinking took place earlier this year with Abby Miller, a Bloomberg Innovation Fellow and member of the Memphis Innovation Delivery Team and John Keefe from WNYC, the NPR station in New York City. Today, I will discuss their work leveraging the resources of their very different communities in very different roles – one working inside Memphis city government and the other in the media in New York City.
[Read more…]

Government Needs to Embrace the Social Web – Principle #6 for Fostering Civic Engagement Through Digital Technologies

As Rahm Emanuel said, “You never want a serious crisis to go to waste. And what I mean by that – it’s an opportunity to do things you think you could not do before.” The Federal government shutdown has, at least temporarily, shed light on the valuable day-to-day work done by the Federal government and its employees. Now is the time for the Federal government to strengthen the connection between the public and Federal employees. The Federal government should embrace the social web as a part of its employees’ work lives.

To this point open government has generally meant that citizens have the right to access the documents and proceedings of the government to allow for effective public oversight. Open government should include people too. Putting a human face – along with professional contact information and areas of expertise – as a part of Agencies’ public facing websites will facilitate transparency. Employees should have something like a Facebook-lite or more open version of Linked-in, where everyone’s profile is visible. Certainly, there will be limitations. For example, employees with military or law enforcement responsibilities will continue to be largely anonymous. As with e-mail, Agencies will develop oversight mechanisms. Even so, the public and Federal employees should have better access to each other.
[Read more…]

The New Ambiguity of "Open Government"

David Robinson and I have just released a draft paper—The New Ambiguity of “Open Government”—that describes, and tries to help solve, a key problem in recent discussions around online transparency. As the paper explains, the phrase “open government” has become ambiguous in a way that makes life harder for both advocates and policymakers, by combining the politics of transparency with the technologies of open data. We propose using new terminology that is politically neutral: the word adaptable to describe desirable features of data (and the word inert to describe their absence), separately from descriptions of the governments that use these technologies.

Clearer language will serve everyone well, and we hope this paper will spark a conversation among those who focus on civic transparency and innovation. Thanks to Justin Grimes and Josh Tauberer, for their helpful insight and discussions as we drafted this paper.

Download the full paper here.

Abstract:

“Open government” used to carry a hard political edge: it referred to politically sensitive disclosures of government information. The phrase was first used in the 1950s, in the debates leading up to passage of the Freedom of Information Act. But over the last few years, that traditional meaning has blurred, and has shifted toward technology.

Open technologies involve sharing data over the Internet, and all kinds of governments can use them, for all kinds of reasons. Recent public policies have stretched the label “open government” to reach any public sector use of these technologies. Thus, “open government data” might refer to data that makes the government as a whole more open (that is, more transparent), but might equally well refer to politically neutral public sector disclosures that are easy to reuse, but that may have nothing to do with public accountability. Today a regime can call itself “open” if it builds the right kind of web site—even if it does not become more accountable or transparent. This shift in vocabulary makes it harder for policymakers and activists to articulate clear priorities and make cogent demands.

This essay proposes a more useful way for participants on all sides to frame the debate: We separate the politics of open government from the technologies of open data. Technology can make public information more adaptable, empowering third parties to contribute in exciting new ways across many aspects of civic life. But technological enhancements will not resolve debates about the best priorities for civic life, and enhancements to government services are no substitute for public accountability.