UPDATE SEPTEMBER 17, 2020: Open Courts Act unanimously approved the House Judiciary Committee.
The Open Courts Act of 2020 (H.R. 8235), introduced in Congress this week by Georgia Representatives Hank Johnson (D) and Doug Collins (R), would require that all PACER fees be eliminated and that court records me made freely available to the public.
Representative Johnson told the Judiciary Committee,
“Convenient access to public records in federal courthouses shouldn’t be a privilege just for the wealthy few and their silk stocking, tassel shoe-wearing corporate lawyers."
Here at Right of Assembly, we do not think of ourselves as silk-stocking, tassel-shoe-wearing-corporate-lawyers each time we log in to PACER to gather public information necessary for journalism, but we agree that the general public ought to have free access to the records from public courts in public litigation.
We would go even further the Honorable legislators have and suggest that when parties avail themselves of the public forum, the details of the proceedings should not be shielded in other ways, either, such as:
Expensive transcripts monopolized by court reporters
Transcript embargoes enforced by courts to protect court reporters' monopolies
Parties' self-serving confidentiality agreements
Overly broad protective orders
Legal briefing not docketed, like letter briefs in discovery disputes
Key documents not docketed, like invalidity and infringement contentions
No public access to telephonic hearings
No video cameras allowed in federal courts
But if we were just going to fix a single thing fast, it would be this -- PACER access should be free.
Co-sponsor Hank Johnson told the told the House Judiciary Committee:
Anyone who goes to the United States Supreme Court’s website can read any of the documents filed before the Court, free of charge. The same thing is true for the state courts in mine and Rep. Collins’ home state of Georgia, and indeed in every state and local courthouse throughout the land. And that’s the way it should be. The public has a fundamental right to free access to the public documents in the courthouse, because those documents enable the public to see what justice looks like on paper. Papers filed in the courthouse are a record of what goes on in the public courthouse.
But unfortunately if you want to read the public records filed in the federal courts other than the U.S. Supreme Court, you have to pay a fee. And the fee is an expensive one. The prices are like a “keep out” sign for the little guy: ten cents per search, ten cents per page, and up to three dollars per document. It can cost hundreds of dollars to read the filings in just one big case.
The federal courts extract between $100 and $140 million every single year from folks looking online to see what public documents have been filed. In other words, the federal courts take in a lot of money from folks going on line to see what justice looks like in the federal court system. $100 to $140 million per year is a lot of money taken from people who are exercising their fundamental right to access public court records. And to make matters worse, just last month a court of appeals held that the Administrative Office of the United States Courts was unlawfully using that money to fund a range of programs that had nothing to do with giving the public access to federal court records. Frankly, it’s unconscionable, it needs to stop, and that’s exactly what the Open Courts Act of 2020 will do. Once it is passed and signed into law, the Open Courts Act will abolish the requirement that fees be paid to entitle a person to look at public documents filed in federal courthouses. The public will be able to view public documents on line, for free.
We don't charge folks to access to the U.S. Code. There is no charge to view the Federal Register. You can look at the legislation Congress passes for free, by going to Congress.gov. Our courts are a vital part of our American government, what goes on in the federal courthouse is public, and Congress has a responsibility to ensure that public records in the public federal courthouses be accessible for free to the public...
Gabe Roth, director of Fix The Court, said, "Even the most hardened partisans can agree that charging members of the public for access to public records is nonsense."
So three cheers for representatives Johnson and Collins, and godspeed to the Open Courts Act of 2020.
Here is the actual text of the bill.