Like any lawyer, Tina Willis, owner of Tina Willis Law, a personal injury law firm in Orlando, Florida, frequently accesses court records electronically. But as a general rule, she tries to avoid PACER.

That’s because PACER (Public Access to Court Electronic Records) requires payment to access certain documents—costs she has to pass on to her clients by deducting them from finalized settlements.

“Most of my personal injury and accident clients have very little money, so they really shouldn’t have to pay any costs to access publicly available documents that are necessary for them to have access to the justice system,” Willis says.

PACER seems like a simple enough concept: It provides digital access to U.S. appellate, district and bankruptcy records and documents. But the people the ABA Journal spoke with describe PACER as less of a service to citizens and more of a labyrinth that’s not only difficult to navigate but also costly and tedious to even enter.

In fact, nonprofit organizations the National Veterans Legal Services Program, the National Consumer Law Center and Alliance For Justice filed a lawsuit in April 2016 claiming PACER’s fee schedule is higher than necessary to cover operating costs, and it violates the E-Government Act of 2002. The lawsuit, which was certified as a class action in January 2017, seeks to recover fees paid over the prior six years that the plaintiffs consider excessive.

The plaintiffs provide two examples of how the fees exceed operating costs. According to the lawsuit, the judiciary in 2012 spent $12.1 million of the money generated from public access on the public access system.

However, it spent more than twice that amount ($28.9 million) on courtroom technology. And in 2014, the judiciary received more than $145 million in fees, and most of it was earmarked for courtroom technology, websites for jurors, bankruptcy notification systems, and other projects unrelated to maintaining PACER.

In March 2018, a judge in the U.S. District Court of Columbia declared some of the PACER fees violated the E-Government Act of 2002, which stipulates that fees should only be required to reimburse expenses incurred to provide electronic access. In February 2020, the U.S. Court of Appeals for the Federal Circuit heard oral arguments.

THE CASE FOR FREE ACCESS

At issue is whether PACER’s fees are consistent with the original intent of providing public access to court electronic records.

“The government’s practice of charging exorbitant fees for court documents, which exceed the costs of providing access to those documents, is at odds with the text and history of the E-Government Act, as well as Congress’s plan in passing it,” says Ashwin Phatak, appellate counsel at the Constitutional Accountability Center.

He says the act’s intention was to lower the cost of document access. “However, PACER fees have only gone up, even as the costs associated with providing PACER services have dropped precipitously.”

And he believes those fees serve to limit the number of people who can access court records, which is problematic for another reason.

“It creates a system in which rich and poor do not have equal access to important government documents,” Phatak says. “The court should require the government to charge PACER fees only to the extent necessary to provide those documents, as Congress intended.”

Willis agrees and says she understands there may be expenses for upkeep and administration, but she also points out that “many state courts provide this access for free, and libraries have long existed that provide free access to documents and books.”

In fact, according to Joseph Hoelscher, managing attorney at Hoelscher Gebbia Cepeda in San Antonio, Texas, there are very few online docketing systems or court registers that charge for searches.

And he brings up another issue: How do you even know if you’re going to find something relevant before you search?

“I can see an argument for charging for downloads, because it could be a significant amount of data/bandwidth in some cases, but the general principle still stands that public records should be available to the public without barriers based on income,” Hoelscher says.

Considering all the things the government provides without a fee, he doesn’t see how a cost-based barrier can be justified for self-serve public records.

“The information is needed for the public to properly participate in government, and at a minimum, there should be a threshold for free searches based on volume or for noncommercial use.”

According to Michael Sander, the founder and managing director at Docket Alarm and the director of analytics at Fastcase, from a legal technology and data analytics perspective, it’s impossible to do comprehensive analysis on PACER without spending many millions of dollars—and that’s why no one is doing it.

“People take slices and slivers and try to do an analysis on that,” he says.

Even if PACER fees aren’t reduced to zero, Sander says there are other things that can be done.

“I understand recouping costs, but I believe government should not be using public access to official documents as a revenue source—that’s not a best practice.”

BRINGING PACER INTO THE 21ST CENTURY

Aside from the fees, many legal experts believe there are other issues that make PACER tedious and cumbersome. Willis is an avid user of many legal search websites, and she considers PACER downright antiquated. For this article, Willis tried to log in to PACER although she hadn’t done so for a while.

“I couldn’t remember my username or password, and after entering my email, first and last names and date of birth, I was promised an email within 15 minutes [containing] my sign-in details.”

Thirty minutes later, she still hadn’t received an email.

“In comparison, on the state court website, anyone can immediately run a free search without entering any special username and password combinations, which PACER only needs because it charges a fee.”

Compared with some alternatives, Hoelscher admits PACER might be better, but he concludes it’s still terrible.

“There are no uniform conventions for naming documents or the style of cases across districts, and the search function requires too much precision.”

In addition, he says the user interface isn’t intuitive—even for legal professionals.

“Worse, because each district handles records using different conventions and they aren’t integrated into a single searchable system, using PACER for research purposes is virtually impossible.”

In other words, when using PACER, he says, you need to already know what you’re looking for. And Hoelscher also says people such as academicians, journalists or citizens don’t necessarily know what they need.

That doesn’t mean that PACER is a useless tool. Admittedly, compared with other sites that contain as much data, it is difficult and cumbersome.

“However, if the comparator is to other FOIA-related requests, it is far easier than the onerous process often required to get documents from other branches of government,” says Sekou Campbell, a partner in the Philadelphia offices of Culhane Meadows.

But he laments the limited search capabilities. “For example, there are no keyword, subject matter, judge-by-judge or decision searches.”

Next to cost, this lack of data consistency is one of the primary issues for Sanders.

“It’s not a consistent system; if you start searching around, you’ll get redirected to other websites that have PACER data, and there’s one for every single court.”

He understands why it was done: so each court could have its own set of rules and customization.

“But instead of getting a consistent system, each court has its own peculiarities, naming systems and preferences regarding what type of data gets mixed-in or left out.”

And that makes comparison extremely difficult.

For example, there’s widespread inconsistency regarding what data makes it into the court docket. Sander says attorneys write letters to judges and send them via email.

“These should be a part of the public records—if you send an email to the judge, they’ll post it.”

But he says this decision is made at each judge’s discretion.

“As a result, there is a lot of information that should be public record but isn’t due to this lack of a clear standard.”

Sander acknowledges that there may be certain scenarios in which judges have the right to determine if the correspondence should be made public or not.

“But there should be standard procedures for doing that,” he says.

And Sander points to another issue, the lack of proper user validation. This results in inconsistent data and data quality among attorneys.

“PACER is how you download data, but the other part of the system, ECF [Electronic Case Files] is how attorneys upload data, and there’s a lot of room for attorneys to make mistakes.”

For example, let’s say you’re an attorney and you filed 10 cases when you worked at law firm A. But you switched firms, and now you work at law firm B.

“You log on to change your login to reflect that you now work at law firm B,” he says. “But if you’re not extremely careful, the system will not only change your new cases, it will also go back and change the name of your law firm for all of your old cases.”

Sander says PACER attributes this to user error. “However, it has happened in thousands of cases, and if everyone is making the same mistakes, it’s not user error.”

Yet another issue is that there’s no way to make suggestions to change PACER. “They see this as a revenue source and they have a monopoly, so even though ‘public access’ [are its] first two words, they don’t seem to take this seriously,” Sander says.

Since there is no way to make suggestions, Sander says other people have come together to create a public list of PACER issues. “The list of issues is pretty technical, and because PACER itself does not look at them, they are more of a sounding board than a true path toward improving the system.”

So what’s the solution? Hoelscher says PACER should be integrated like common legal search engines and given a modern search function.

“There needs to be one portal covering all of the federal judiciary, including bankruptcy courts, district courts and higher courts.”

If fees for downloads aren’t going to be waived, he says users should at least be able to preview documents prior to download for free.

“Frankly, instead of trying to fix PACER, it might be better to start from scratch using a modern database solution and then migrate the data,” Hoelscher says. “Ultimately, PACER should support the ability to search for words or phrases within documents themselves so that the public has some chance of being informed about litigation and the proper functioning of the entire branch of government that is our federal courts.”

Another suggestion is for the system to provide real-time information. Campbell says PACER is much more static that the court system.

“There should be a system of alerts and notices for the system to allow for better tracking of important types of cases,” he says. “In my view, PACER’s most important improvement would be to allow for a dynamic way to search its database to reflect the ever-changing status of cases within the system.”

According to Sander, the responsibility for making PACER efficient and economical lies in the federal judicial system.

“If they need more funds for their other projects, they should go to Congress and ask for more money, but they can’t continue to treat PACER as a revenue source.”