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Appeals court grapples with fight over fees for public records

Appeals court grapples with fight over fees for public records
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A federal appeals court heard arguments on Monday in a legal challenge to the fees the government charges for access to online court records.

At issue is the judiciary’s Public Access to Court Electronic Records system (PACER), which charges users 10 cents a page for documents. Those fees generated $146.4 million in revenue for the federal court system in 2016, the most recent year on which data is available.

A group of nonprofits — the National Veterans Legal Services Program, the National Consumer Law Center and Alliance for Justice — filed a class-action lawsuit against the government in 2016, arguing that the fees are excessive and in violation of the law. The nonprofits argue that federal court administrators are using the money for other programs and services that should be funded by Congress.

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During oral arguments in the Federal Circuit Court of Appeals on Monday, a panel of three judges sharply questioned both sides, as they worked through how to handle the lawsuit.

Judge Raymond Clevenger, a George H.W. Bush appointee, suggested that it’s unclear how much money the government should be charging for access.

Clevenger said PACER fees seem appropriate if they are paying for enhancements to the system itself.

But “if the cost is for decorating the office of my [court records] officer, I’m not sure that that qualifies” as an appropriate use of PACER revenue, Clevenger added.

The groups challenging the fees say that the law provides that the court system can only charge PACER fees necessary to maintaining the system.

“Instead of complying with this law, the [Administrative Office of the U.S. Courts] has used PACER fees to fund projects far removed from the costs of providing records on request—for example, using the money to buy flat-screen TVs for jurors, to send notices to bankruptcy creditors, and to fund a study by Mississippi for its own court system,” the groups wrote in a recent court filing.

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The Justice Department, though, is arguing that the nonprofit groups have no standing to bring the lawsuit. Alisa Klein, the attorney arguing on behalf of the government, said that court access laws enacted by Congress did not provide an avenue for such class-action suits.

“We do not believe Congress put this court in the position of going back over the judiciary’s internal accounting and expenditures and compelling the judiciary to produce documents that are exempt under FOIA,” Klein said.

But Clevenger was skeptical of that claim.

“[Congress] instead authorized the judicial conference to charge a fee even if it was knowingly, blatantly illegal and to collect the fee and to have absolutely no remedy — that’s your position?” Clevenger shot back in a testy exchange.

A district court judge ruled in 2018 that the PACER fees are in excess of what the law allows, but that the judiciary is free to use the revenue for certain uses not related to maintaining the court records system. Both sides appealed that ruling, which left the nonprofits and the government unsatisfied.

The case has drawn interest from lawmakers, journalists, academics and even former judges. A group of retired jurists filed an amicus brief in the case last year, putting forth an argument that goes beyond what the plaintiffs are pushing for.

“The best policy is to make PACER free,” the group wrote. “The economics of electronic information make that easy.”

Updated at 2:36 p.m.