Why Must Congress Drag The Federal Judiciary Into the 21st Century?

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The House Judiciary Committee unanimously advanced a bipartisan bill this week to improve access to federal courts by forcing the federal judiciary to make its court documents free to the public.

The Open Courts Act (H.R. 8235) if adopted, will make it much easier for individuals who cannot afford to hire an attorney to represent themselves in employment discrimination lawsuits. At least a quarter of federal lawsuits are brought by self-represented or pro se plaintiffs.

At present, the Administrative Office of U.S. Courts (AOC) operates a complex data base system called Public Access to Court Electronic Records (PACER) that charges viewers ten cents a page, up to $3 per document, to view court documents.

The system costs an estimated million dollars per year to operate but yields fees estimated at $146 million per year, resulting in a growing surplus.

House Judiciary Committee Chair Jerrold Nadler, D-NY, said at a hearing Tuesday that federal courts have “lagged behind modern standards of accessibility and openness.” He noted Congressional documents are free and easily accessible at congress.gov . By contrast, he said PACER is “difficult to understand,” “cumbersome” and carries “a landmine of fees.”

Nadler said the current system also makes it difficult for journalists and scholars to analyze court operations.

“It is indefensible that the public must pay fees, and unjustifiably high fees at that, to learn what is happening in their own courts,” he concluded.

The Open Courts Act is sponsored by Georgia Reps. Hank Johnson (D) and Doug Collins (R). The committee voice vote approving the bill was unanimous; no one spoke in opposition.

What’s Wrong With This Picture?

You may wonder why the U.S. Supreme Court or the AOC has failed to move on its own initiative to improve the public’s access to justice by insuring court documents are accessible and free to the public. There was no response to a question to that effect emailed to the AOC on Friday.

In August, a three-judge panel of the U.S. District Court of Appeals for the District of Columbia Circuit agreed with a lower court’s ruling that judicial branch administrators were using PACER revenues for projects not approved by Congress, including general courtroom technology expenses (i.e. flatscreen TVs) and various studies.

“If large swaths of the public cannot afford the fees required to access court records, it will diminish the public’s ability to participate in and serve as a check upon the judicial process – an essential component in our structure of self-government,” the panel concluded.

The judges said the federal judiciary can recoup limited fees from PACER to fund operating expenses and related projects, such as operating audio recording systems in courtrooms ( audio files are available through PACER) and to permit attorneys file court pleadings online.

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