July 18, 2018

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.

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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.
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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.
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