Senator Joe Lieberman wants to know why the heck PACER, the database that contains federal court documents, isn't free and still charges users 8 cents a page. We'd like a coherent answer to this question as well! Senator Lieberman's inquiry, which he sent to the Judicial Conference of the United States, includes some pointed, sharp arguments supported by federal legislative history. When I teach legislative history research, students always want to know, "How would I ever use legislative history to make a legal argument?" Senator Lieberman uses a quotation from a committee report to great effect in this portion of the letter:
The goal of this provision, as was clearly stated in the Committee report that accompanied the Senate version of the E-Government Act, was to increase free public access to these records. As the report stated: “[t]he Committee intends to encourage the Judicial Conference to move from a fee structure in which electronic docketing systems are supported primarily by user fees to a fee structure in which this information is freely available to the greatest extent possible. ... Pursuant to existing law, users of PACER are charged fees that are higher than the marginal cost of disseminating the information.”
Seven years after the passage of the E-Government Act, it appears that little has been done to make these records freely available – with PACER charging a higher rate than 2002. Furthermore, the funds generated by these fees are still well higher than the cost of dissemination, as the Judiciary Information Technology Fund had a surplus of approximately $150 million in FY2006. Please explain whether the Judicial Conference is complying with Section 205(e) of the E-Government Act, how PACER fees are determined, and whether the Judicial Conference is only charging “to the extent necessary” for records using the PACER system.
Read Senator Lieberman's entire letter to Judge Lee Rosenthal of the Judicial Conference of the United States here.