What can Illinois courts learn from PACER?
There is no doubting it, in the Illinois courts and circuit clerks’ offices around Illinois’ 102 counties, paper is king. But as we quickly approach the 2018 deadline for required electronic filing of documents in all civil cases by Order of the Illinois Supreme Court,1 the court clerks, lawyers, judges, paralegals, and staff are faced with an enormous task of going paperless by embracing digital storage and access to information.
Ideally, this transition to technology will make the Illinois court system more efficient, environmentally friendly, and cut overall costs along the way. So with the “when” answered by the Supreme Court’s Order, the courts and clerks around the state continue to focus on the “how.” And what better example of an electronic court records system to look to for guidance other than the federal government’s Public Access to Court Electronic Records (PACER) system.
Since its inception in 1988 (before the birth of the world-wide web), PACER changed how everyone, from pro se litigants to judges, obtains files and tracks federal cases. Yet, while the federal courts have enjoyed all the benefits the federal electronic court systems in all bankruptcy, district, and appellate courts, it has not been a stranger to various criticisms from the legal community and the public alike.
Illinois may have some things to learn from the growing pains of PACER if it is to build a cheaper, faster, more efficient, and environmentally friendly e-filing system. The high cost to access case information using PACER seems to garner the most critiques. The government claims it needs the operational revenues, while the critics say it is unjustly profiting from disproportionate fees that exceed its costs.
While Illinois courts are prohibited from charging any additional filing fees beyond what is currently paid at the counter, the new e-filing standards do not preclude an e-filing vendor from charging fees for electronic filing services to litigants. Thus, as a single Electronic Filing Manager (EFM) is rolled out statewide and is integrated with each court’s case management system, a reasonable and justified fee schedule can lead to accessible public data with the appropriate monetary support to maintain and update it.
Additionally, if we want the public and the legal profession to be accepting of a new platform, the technology infrastructure must have statewide uniformity while being user-friendly and able to properly account for data security and privacy. The Illinois courts need to learn how to balance the need for data protection with access to that data in a way that benefits everyone. This usually means coming up with a simple system and sticking to it.
Prescribed Fees: Reasonable or Excessive?
Since it was launched, PACER required fee revenue to build, operate and maintain the system since there were no appropriations from Congress to provide electronic public access. The PACER access fee in general is $0.10 per page, including search result pages even if no matches result, with a cap of $3 (the equivalent of 30 pages) for any single document. For example, accessing a 50-page court-filed document would cost the user $3. However, attachments to the document are considered separate documents and would require additional fees. While these dollar amounts may seem trivial, they can quickly add up when searching and accessing federal case information on a routine basis.
Illinois has a potpourri of free and fee-based online court case lookup services across its 102 counties. Traditional access to view court documents in-person without any fee remains viable. Should a copy be requested, a nominal fee is often charged to cover the administrative and product costs of making such copies, whether a page or two, or many more. Some Illinois courthouses have gone a bit further by charging for the public to make their own copies by taking photographs of court records. The La Salle County Circuit Clerk’s Office is among the courts which allows the public to photograph the records or the public computer screens, but only with payment of the same fees it assesses for copying2-- $2 for the first page, 50 cents a page for the next 19 pages and 25 cents a page thereafter. So, should a nominal fee likewise carryover to online access, at least to cover the overhead costs involved in creating and transmitting that request to the online recipient?
As e-filing becomes mandated, Illinois courts and clerks’ offices must balance their relationship with any e-filing vendor and the necessary revenues to develop and maintain their system with a price point that is not prohibitive for the users of our court system in both filing and accessing information. Clearly unfunded mandates must seek reasonable alternatives to adequately fund their operations. But at what point do fees become overbearing or excessive?
Claims of excessive fees charged by PACER have been ongoing. A recent lawsuit3 filed in U.S. District Court for the District of Columbia by the Alliance for Justice, the National Veterans Legal Services and the National Consumer Law Center asserts that the Administrative Office of the U.S. Courts is making too much money off the excessive fees charged for PACER. The lawsuit alleges that the fees for using PACER go beyond the actual cost of providing public records, thus preventing access to important court records. Furthermore, the nonprofit organizations claim the administrative office has a practice that discourages waiving Pacer fees for pro se litigants, journalists, researchers and nonprofit organizations.4
“Faith in our judicial system depends on transparency and uninhibited access to court documents for all Americans, regardless of the ability to pay,” stated Nan Aron, president of the Alliance for Justice, in a press release about the lawsuit. “It’s particularly disturbing that the courts themselves are violating a plainly written law, especially one designed specifically to promote public confidence in the judicial system.”
These claims of unreasonable costs are nothing new. In 2008, the LLRX, a “small band of law librarians who believe in improved open access” led by Sabrina I. Pacifici, conducted a survey of 58 law firm libraries.5 The law firms reported an average of $13,068.48 spent on PACER fees, totaling $692,629.30 in 2008, with one firm spending almost $110,000.
The E-Government Act of 2002 provides, with respect to PACER fees, that the “Judicial Conference may, only to the extent necessary, prescribe reasonable fees… to reimburse expenses incurred in providing these services.” But is a reasonable balance between public access fees and the cost of operating expenses for those same services being struck? While it may be difficult to accurately determine the operating expenses for the PACER system, reports have claimed the gap to be excessive.
The Tucson Sentinel reported6 that PACER generates revenues “nearly five times what it cost to run the system.” For example, in 2012, PACER had an operational cost of $22 million while earning $95 million in fee revenues. When fees were increased to $0.10 per page in 2012, PACER revenues further increased to $145 million, “much of which was earmarked for other purposes such as courtroom technology, websites for jurors, and bankruptcy notification systems,” according to the aforementioned lawsuit.
High Costs Are the Mother of Invention
Such high fees have resulted in some unendorsed alternatives to PACER, such as RECAP (PACER spelled backwards). RECAP is an extension (or “add on”) for the Firefox and Chrome web browsers that allows users to access documents that have been previously downloaded by other RECAP users without having to go beyond PACER’s “paywall” to view them. RECAP does this by creating a free and open repository of public court records when each RECAP users automatically “donates” the documents they purchase from PACER into a public repository.
RECAP is a joint project of the Center for Information Technology Policy at Princeton University and Free Law Project, and is not affiliated with or endorsed by the PACER system or the United States judiciary. In fact, the federal courts have posted warnings7 on the use of RECAP such as reminding paid users to “be aware that RECAP is ‘open-source’ software, which can be freely obtained by anyone with Internet access and modified for benign or malicious purposes, such as facilitating unauthorized access to restricted or sealed documents.” The ironic solution to such user security warnings would be for the government to directly connect users to the correct RECAP site.
Your Digital Footprint on Court Documents
Criticisms over PACER have extended beyond those of excessive costs. Reader privacy, an essential First and Fourth Amendment individual right, often must go denied due to the current framework of online systems like PACER which do not allow for anonymity when accessing digital records. Leaving an intrusive footprint for governmental and private entities is a price that users must be willing to pay.
Legal scholar Julie Cohen starts her landmark article8 in Internet Law by stating:
A fundamental assumption underlying our discourse about the activities of reading, thinking, and speech is that individuals in our society are guaranteed the freedom to form their thoughts and opinions in privacy, free from intrusive oversight by governmental or private entities.
Balancing an open and accessible resource for the courts, litigants, academics, and the public with accountability creates an understandably difficult challenge for system designers. As PACER and similar systems evolve, open data advocates will continue stressing the “P” in “Public” in eliminating barriers to public information such as excessive fees and providing personal information.
Focusing on the Court and the Customers
As the Illinois courts build and improve upon the framework of digitally accessed court records, considerations for user access and privacy must be included in the conversation. Laws and policies governing privacy issues that predate the internet need reevaluation for appropriate application to modern mediums of communication and access to information.
While PACER has defined electronic access to all unified federal courts, the 24 judicial circuits of Illinois must find similar commonality in function and cost to build a unified system for the electronic filing of cases and case documents throughout the Land of Lincoln. Uniform standards and principles may allow the diverse local jurisdictions of Illinois to define their own best models for e-filing regardless if the county serves millions or a few thousand.
The lessons of PACER before us show we cannot wait on a new generation of tech-savvy clerks, judges and politicians to create the appropriate digital court system in Illinois. The discussion must include not just how it is going to work for the courts, but how is it going to work for the people.