Reforms for Accessing Federal Public Court Records Are Long Overdue

It’s time for Congress to Overhaul PACER.

By Rita Wegner

The American courts system is a vast, sprawling behemoth, broken up by level of government and location. Access to records from local and state courts varies widely, but in 1988 the federal government created the Public Access to Court Electronic Record, commonly known as PACER. Compared to other levels of courts, this is an easy and unified way to obtain federal records, but, after more than 30 years improvements are desperately needed. PACER is too expensive and courts can selectively choose which records they upload to the system, hindering true, full access to our nation’s federal court system.

As a nonprofit charged with keeping federal and state officials accountable, Campaign for Accountability uses PACER to monitor public officials’ involvement in legal proceedings. And when preparing research to file an ethics complaint with the Office of Congressional against Rep. Roger Williams (R-TX) for helping a powerful donor, we noticed that certain exhibits introduced during trials and hearings weren’t available on PACER.

At issue were exhibits from a bankruptcy proceeding in the Northern District of Texas. Specifically, a shareholder of one of the proceeding’s creditors, Gary Martin, is a top Williams donor. Through reporting we learned that Martin, along with Congressman Williams, gave depositions about Williams pressuring another party involved in the bankruptcy. The depositions were filed as exhibits and were not publicly available on the online version of PACER.

To get them, we had to contact the court clerk, pay 50 cents per page (five times more than the normal amount for federal court documents), and mail in a money order — requiring a trip to the post office during a pandemic. Only then were the documents mailed to us. There’s no reason for the courts to selectively keep certain exhibits off a legal and accountability tool that claims it “provides the public with instantaneous access to more than 1 billion documents filed at all federal courts.”

Even more troubling in this case is that sworn testimony from and about a publicly elected official was kept offline. And, to add fuel to the fire, there is no way to search all documents on PACER for references within documents for mentions of specific people. There are billions of court documents in existence — that means there may be sworn testimonies and other important documents relevant to elected officials that we’ll never be able to find.

Another common complaint about PACER is cost. PACER charges an estimated 100,000 times more per page than what it actually costs to retrieve those documents. At 10 cents per page, costs can rack up quickly — to the tune of thousands of dollars ­­ — all to access public records. While large news organizations like The New York Times might be able to spend thousands of dollars to download records from PACER, these fees are huge financial burdens for smaller newsrooms that have been struggling to stay afloat. And it’s not just newsrooms — transparency groups, legal organizations, and other non-profits also need greater accessibility.

Also, while PACER boasts “instantaneous” access to court documents, there is missing information. Such is the case with one of the most high-profile events in recent history — the January 6th insurrection. Despite the many videos taken that day being used as evidence in federal court cases against insurrectionist defendants, 14 media organizations had to join together and file a motion to gain access to them, citing the First Amendment, when the court didn’t put them on PACER. In fact, PACER should always have videos submitted to the court available — it’s 2021 and a great deal of information is presented in video format.

Reforms for easing access to federal court records are long overdue. PACER fees are burdensome, the system is out-of-date and hard to use, some records require extra and more expensive steps, and troublingly, some records just aren’t there. But Congress can change that. Right now, two bills are awaiting action that will improve the public’s access to all court records. Both bills would provide greater, fairer access to the federal court system and allow for a better pursuit of accountability.

Rep. David Cicilline (D-RI) introduced a bill in 2019 to pilot a program to provide online access to federal case exhibits introduced during trial. And last year, the House passed, with bipartisan support, the Open Courts Act, which would give the public free access to all federal court records. But it’s sitting in the Senate waiting to be considered by the Judiciary Committee. Both bills could have ensured that the exhibits we were trying to access would have been available on PACER.

The American people deserve accountability from Washington, and at a bare minimum, that includes knowing when their elected officials are involved in legal proceedings. Reforming PACER by passing the Open Courts Act and making it free, ensuring that all public documents, including exhibits, are electronically available, and allowing users to keyword search names and entities across all documents would remove barriers for those who use court records to hold both those in power and the justice system accountable. It’s time for Congress to act.