The Price of Ignorance: The Constitutional Cost of Fees for Access to Electronic Public Court Records

Abstract

The U.S. Federal Judiciary maintains a system called PACER, “Public Access to Court Electronic Records.” PACER is the public gateway into the electronic repository for all documents filed in federal court. In lieu of appropriating funds for operating the system, Congress permitted the Judiciary to collect fees. Through the web, for a per-page fee, members of the public may access documents that have traditionally been part of the free public record. The fees have persisted for decades, even though Congress intended for the Judiciary to move away from user fees to a “structure in which this information is freely available to the greatest extent possible.” This paper argues that the Judiciary has erected a fee structure that forecloses essential democratic ends because the fees make public federal court records practically inaccessible. The per-page fee model inhibits constitutionally protected activities without promoting equally transcendent ends. Through this fee system, the Judiciary collects fees at ever-increasing rates and uses much of the revenue for entirely different purposes. In this era, the actual cost of storing and transmitting digital records approaches zero. Hence, PACER should be free. This paper examines the public’s interest in free electronic access to federal court records and considers the relative strength of legal and policy arguments to the contrary. Part I performs an accounting of the true costs of a free-access regime. Part II details the benefits of free electronic access to federal court records. Part III argues that, in the tradition of Richmond Newspapers, free access to electronic court records is a constitutionally necessary element of the structure of our modern Judiciary.