Making Excuses for Fees on Electronic Public Records

"I recently posted about my draft bill to make electronic public access to federal court records free (#openpacer). Since then, I’ve had some very positive feedback from members of Congress, and I expect that the bill will be introduced with bipartisan and bicameral support once the public settles on the right language (the bill text is open for comment). In the meantime, I wrote a letter to Judge Hogan, Director of the Administrative Office of the US Courts. I wanted to make the case directly to him that the courts should do the right thing — and that what they are doing right now is against the law. I was assured by his colleagues on the bench that Hogan is a reasonable and judicious person, and that he would at least hear me out. Yesterday, his administrative assistant replied to me. She said that he had forwarded the letter to the people in the Public Access and Records Management Division (PARMD), and that he didn’t want to talk to me. She said that I could contact Public Affairs Office if I wanted to discuss it further. The PARMD folks have, in the past, forwarded my requests for things like the congressionally mandated Judiciary Information Technology Fund Report to the Public Affairs folks, who of course never respond. So, rather than participating in yet another bureaucratic run-around, I thought I’d outline the series of poor excuses that the Administrative Office has offered to justify their fees. If you’re a lawyer reading this, I invite you to consider what a lawsuit might look like. My email address is sjs@princeton.edu. Before we get to the excuses, however, let’s review the law. 28 U.S.C. 1913 (note) says ... The current fees are unquestionably greater than the cost of providing the services. Since passage of the E-Government Act, the cost of storing and delivering bits of data over the Internet has continued to fall precipitously, and the cost of PACER access has gone up by 42 percent. The courts conveniently compiled many of their excuses in a document entitled, 'Electronic Public Access Program Summary: December 2012.' I should be clear that even if these excuses had some grain of truth, none of them could erase the simple fact that the courts are charging much more than the law allows. Nevertheless, I feel some need to point out how ridiculous they are, even on their own terms. Here’s the breakdown... "