“The Wall” Litigation Moves Forward, But Slowly

Discussion about the cost of access to documents on PACER (Public Access to Court Electronic Records) — sometimes referred to as “The Wall” — is not a new one.  In the May 2017 issue of The CRIV Sheet, an article described the background of the availability of court documents, the evolution of PACER, and a group of four lawsuits filed against PACER at the time.

Recently, The Goodson Blogson posted an update on this ongoing litigation focusing on one of these law suits, a class-action led by three consumer protection groups: the National Veterans Legal Service Program, the National Consumer Law Center, and the Alliance for Justice.  A New York Times article on the case, states that the complaint “highlighted practices of overcharging or double-charging individual users, and also challenged the judiciary’s practice of using excess PACER income for costs unrelated to the maintenance of the court record system.”  More specifically, according to a Minnesota Law Review article, at the center of this class action suit was a phrase in the E-Government Act of 2002 that states courts may impose fees “only to the extent necessary” to make public records available.

Last year, federal District Court judge for the District of Columbia Ellen Segal Huvelle ruled in favor of the plaintiff consumer groups, accepting the challengers basic theory. The case is now on appeal in the U.S. Court of Appeals for the Federal Circuit and, perhaps predictably, there has been a flurry of supporting Amicus Curiae briefs.

AALL, along with the American Civil Liberties Union, American Library Association, Cato Institute, and the Knight First Amendment Institute at Columbia University, presented an amicus brief supporting the idea that the First Amendment guarantees the public a right of access to judicial records through PACER.  

The Reporters Committee for Freedom of the Press and 27 Media Organizations has filed a brief in support, stating the “policy is bad for democracy” and that “news outlets across the country face leaner budgets” and the budgetary challenges are especially hard on “independent journalists and community news media companies.”

Another supporting brief was filed by former Senator Joe Lieberman, one of the original sponsors of the E-Government Act of 2002.  Senator Lieberman, in his brief, claims Congress meant for fees to cover costs “only to the extent necessary” and that allowing the government to charge fees higher than costs necessary is “at odds with the text, history, and purpose of the E-Government Act of 2002.” (see pgs. 2-3)

In addition, the ABA Journal in an update on the litigation, mentions seven retired federal judges who have filed a supporting brief, including former Circuit Court Judges Richard Posner and Shira Scheindlin.  The judge’s amicus brief calls on the court to allow the information to be accessed for free, arguing. among other things, that it would increase judicial transparency and the legitimacy of the courts.

Oral arguments took place last week on February 3, 2020.  You can listen to arguments at the Court of Appeals for the Federal Circuit oral argument website, appeal number 2019-1081.  A Bloomberg Law article summarizing the oral argument states the “judges appear[ed] to reject [the] government’s broad reading of the statute” and “focused on merits, not government’s jurisdiction argument.”

Post updated: 2/10/2020