One Small Step Toward Free Online Court Records

It's Friday, so let's look on the bright side. It is welcome news that the Administrative Office of the U.S. Courts is able now to offer free public access to federal court records in 16 "federal depository libraries across the country. This means that in those places, from Alaska to Florida, Maine to California, you can essentially walk in and log on to information that federal bureaucrats have for the longest time tucked away into an infernally user-unfriendly database called PACER.

Here is what the press release says: "The project offers free access, at the participating 16 federal depository libraries, to the federal judiciary's (PACER) system. PACER allows users to obtain case file documents, listings of all case parties, judgments, and other information from district, bankruptcy and appellate courts online, with the data immediately available for printing or downloading. PACER normally carries an eight-cents-per-page fee which is used to fund the system's costs. That fee will be waived for all users, even those who already have PACER accounts, when the system is accessed from the 16 libraries."

Left unsaid, of course, is how many other libraries and law schools do not and will not be making freely available to residents this important information. Indeed, it took decades for this incremental development to occur. And it will take decades longer for the courts to prepare for their version of a World-Turned-Upside-Down: a day when anyone anywhere can log onto the PACER system and review its substantive (and public-only) documents. Between this day and that a mountain (of paper, of databytes, etc) will have to be moved. And that assumes, with more than a little risk, that everyone involved wants it done as quickly as possible.

Let's start first with PACER (from its website): "Public Access to Court Electronic Records (PACER) is an electronic public access service that allows users to obtain case and docket information from Federal Appellate, District and Bankruptcy courts, and the U.S. Party/Case Index via the Internet. Links to all courts are provided from this web site. Electronic access is available by registering with the PACER Service Center, the judiciary's centralized registration, billing, and technical support center.

"The PACER System offers an inexpensive, fast, and comprehensive case information service to any individual with a personal computer (PC) and Internet access. The PACER system permits you to request information about a particular individual or case. The data is displayed directly on your PC screen within a few seconds. The system is simple enough that little user training or documentation is required."

Inexpensive but not free. Someone ultimately is going to have to pay for the cost of offering the service for free. Should it be the Administrative Office of the U.S Courts? Probably not. Last time I checked they aren't exactly flush with cash or resources; indeed, the whole federal judiciary is badly in need of more funding from Congress (and if you don't believe me you can ask Chief Justice John G. Roberts, Jr.). If Congress steps up and provides the funding it ought to for its sister branch free online access is going to be way down on the list of priorities which naturally will and should start with the hiring of more judges.

So you've got the money problem. And you also have the logistics problem. Litigants (and judges and lawyers) are genuinely and reasonably concerned that making even public court records available to all online will result in severe even dangerous breaches of privacy. You understand the point. If I have some private information that somehow makes it into a court document-- even inadvertently-- you are far less likely to drag your butt halfway across town to search for it in some dusty warehouse room than you would be to merely click a button on your laptop. In this case, the convenience of technology heightens the concern about privacy.

The solution? It's going to take years and years for federal court clerks, and litigants and lawyers and judges, to come up with procedures that guarantee a private sealed file in a case and a public one. And, naturally, the growing use of two-tiered filing systems (one complete record and one publicly-available record) has journalists concerned about the possibility that all the courtroom actors will simply conspire to put more stuff in the "private" file and leave validly public stuff out of the public file.

And as always you have corporate greed. Huge database companies like Westlaw and Lexis Nexis have paid plenty to get and maintain valuable rights to publish official court information. They aren't about to give up their perch without a huge fight. But that's a blog entry for another day. Have a great weekend.

By Andrew Cohen |  November 8, 2007; 6:28 PM ET
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