January 24, 2013

The Honorable Thomas F. Hogan
Director, Administrative Office of the United States Courts
One Columbus Circle, NE
Washington, D.C. 20544

Judge Hogan,

I am writing you at the urging of Judge Paul Michel, who suggested that you might find my research relevant. I am an academic who studies technology and public policy, as well as open access to public records. You are no doubt familiar with the PACER system, and you may also be aware of criticism of its fees. Although your staff may tell you otherwise, that criticism is valid.

I have enclosed some background materials related to PACER fees:

• Excerpts of the relevant statute (28 U.S.C. § 1913 note and 44 U.S.C § 3501 note)
• Letters exchanged between the Administrative Office and the Senate Committee on Homeland Security and Government Affairs prior to your tenure (HSGAC to AO, the AO Response, and HSGAC to Appropriations).
• My short piece from 2010: “What Does It Cost to Provide Electronic Public Access to Court Records?”
• My 2008 working paper: “Electronic Public Access Fees and the United States Federal Courts’ Budget”
• The announcement of a PACER fee increase last year
• A draft of the “Open PACER Act of 2013,” which I am announcing on Monday

I encourage you to consider whether the Administrative Office and the Judicial Conference are in compliance with the statute. More importantly, I urge you to evaluate whether fee-based access to the digital public record is consistent with constitutional principles of public access to the courts. I believe that, in the legacy of Richmond Newspapers v. Virginia, the courts should offer access for free. Bulk access to all records need not be expensive, and could yield tremendous democratic benefits.

Your staff will tell you that they have taken several steps to mitigate the harm of the PACER paywall—fee waivers, quarterly minimums for billing, publishing opinions “for free.” Nevertheless, researchers, advocates, and everyday citizens regularly encounter the PACER paywall as an insurmountable obstacle to their work. Researchers here at Princeton are unable to pursue corpus-wide research that might yield significant insights into the Judiciary. Advocates are unable to perform valuable oversight (see, e.g., docket 12-16373 in the 9th Circuit [free from me, or for a fee from PACER]). Citizens accustomed to “googling” government records do not even find PACER, or are deterred by its requirement for credit card information, or are frustrated by expensive and confusing search queries.

I will be speaking about these issues at 2:00pm on Monday, January 28th in Rayburn House Office Building, Room 2203 (more information at transparencycaucus.org). I invite you to attend. I am also happy to speak with you by phone or in person at any time.

Regards,

Stephen Schultze