Lawsuit accuses PACER of milking the public for cash in exchange for access

David Kravets

The federally run online court document access system known as PACER now finds itself listed on a federal docket. Its overseer, the US government, is a defendant in a proposed class-action lawsuit accusing the service of overcharging the public.

The suit, brought by three nonprofits on Thursday, claims millions of dollars generated from a recent 25-percent increase in page fees are being illegally spent by the Administrative Office of the Courts (AO). The cost for access is 10 cents per page and up to $3 a document. Judicial opinions are free. This isn't likely to break the bank for some, but to others it adds up and can preclude access to public records. The National Consumer Law Center, the Alliance for Justice, and the National Veterans Legal Services Program also claim in the lawsuit that these fees are illegal because the government is charging more than necessary to keep the PACER system afloat (as is required by Congress).

The groups cite the E-Government Act of 2002, which authorizes PACER fees necessary "to reimburse expenses in providing these services." The suit says that millions of dollars in PACER online access fees have been diverted to other courthouse projects instead. The system was once a dial-in phone service and became an Internet portal in 1998. Fees began at 7 cents per page, rose to 8 cents, and now sit at 10 cents.

"Rather than reduce the fees to cover only the costs incurred, the AO instead decided to use the extra revenue to subsidize other information-technology-related projects—a mission creep that only grew worse over time," the suit (PDF) claims. Citing government records, the suit says that by the end of 2006, the judiciary's information-technology fund had accumulated a surplus of $150 million with $32 million from PACER fees [PDF]. When fees were increased to 10 cents a page in 2012, the amount of income from PACER 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 suit.

The suit pointed out that PACER refused to provide a four-month fee exemption in 2012 for journalists at the Center for Investigative Reporting. Those journalists “wanted to comb court filings in order to analyze ‘the effectiveness of the court’s conflict-checking software and hardware to help federal judges identify situations requiring their recusal.'" Five years before, the lawsuit notes that PACER sued a California woman claiming she owed more than $30,000 in document retrieval fees. After explaining that she didn't have "enough paper and ink to print 380,000 pages as the Complaint alleges," the government dismissed the complaint.

The Administrative Office of the Courts declined comment, saying it had a policy to not publicly discuss ongoing litigation.
This isn't the first time the PACER service has been in the legal news. In 2014, the Administrative Office of the Courts signed off on the deletion of a decade's worth of PACER records because of a computer upgrade. Lawmakers complained, and the agency eventually restored them. At the time of the purging, the agency said those records were maintained on "locally developed legacy case management systems" and weren't compatible to be culled into the new PACER system.