Didn't Expect This: Lieberman Asks Why US Court Documents Aren't Free To The Public

from the did-he-really-just-say-that? dept

Mon, Mar 2nd 2009 7:18am — Mike Masnick

Well here's one that I totally did not expect to see: Senator Joe Lieberman is asking why US court documents are locked up behind PACER's paywall. It's an excellent question. These documents are in the public domain and should be available to everyone. Folks like Carl Malamud are trying to make it happen, but it's still surprising to see Lieberman realize that this is a big issue.

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Filed Under: court documents, joe lieberman, pacer

42 Comments

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Michial, 2 Mar 2009 @ 8:02am

Free should involve a fee not part of my taxes
I thing they should be easily accessed, but I don't need my tax dollars being spent to make them accessable...

If someone wants a document then that person should pay a small fee that covers the cost of housing and delivering that document....
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Thomo, 2 Mar 2009 @ 8:08am

OK to pay copy charges
At .08 per page, it shouldn't be an issue of access. What's sort of annoying is that courts are not uniform in what orders & rulings are free, and which get charged. For example, the USDC in N.D. Calif. freely distributes all sorts of orders, but other courts only have "opinions" as free. It ought to be consistent, and let everything that's signed by Judge be freely accessed.
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Shohat, 2 Mar 2009 @ 8:11am

Why ? ....
Erm, Mike...
Why wouldn't you expect the person behind the E-Government Act to not push for the openness required by it?
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Ima Fish, 2 Mar 2009 @ 8:14am

As Michial points out, someone has to pay for it. So either the government sets up a server and makes it available for "free," paid out of tax dollars. Of course you guys just told us today that such a government venture will "Always Be Inefficient."

Or the government agency can contract with a third party to make them available for a reasonable fee.

What bothers me is the notion that law can somehow be copyrighted. Thank god courts agree that such a notion is complete nonsense.
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hegemon13, 2 Mar 2009 @ 8:31am

Re:
Actually, if you read the article you linked, it says that a government-backed corporation will always be inefficient. Very different thing.

I don't know whether this issue should be a focus of expenditure right now. As others have said, they are available cheaply right now. If it is just a paywall and not a legal barrier, I don't see a problem with the system being paid for by those who use it.

Laws, however, should be freely available, as knowledge of the law is required of the populace. Finances should not be a discriminating factor in whether you have access to the law.
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DanB, 2 Mar 2009 @ 8:34am

how about free electronic docs
The federal government instituted these costs to keep people from requesting documents. There has been a general attack on the Freedom of Information Act (FOIA) since 9/11 by a government that does not believe that the "truth will set you free".

Documents should be available online for free. This was started during the 90's and abandoned due to "security concerns".
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Ima Fish, 2 Mar 2009 @ 8:46am

Re: Re:
"Laws, however, should be freely available"

You can always go to your local public law university's library and research the law for free. And any local court house should have the local laws available in its library for free.

But what's you're talking about is for the government to set up a web service out of tax dollars. In a perfect world, I love the idea. But we don't live in a perfect world.
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Nobody, 2 Mar 2009 @ 9:04am

It is already a requirement that these types of documents be available to the public.

It is also becoming standard practice that all such documents be kept electronically.

Both of these items are already being paid for by the US taxpayers, and yes, that includes servers and network & internet connections.

I definately believe that a paper copy should be paid for, but only to the extent of actual cost of the copy, not the worker's time. Time and effort are already paid for, materials are not.

That being said, electronic files have no time/material associated with the copy. So why should it be neccessary for any US taxpayer to foot any additional expense for a digital file?

One perfect example of (local) Government extortion/corruption involves the reason I could not afford to adopt my step-daughter.

Filing fees and court costs were reasonable, but to file I had to have 3 notarized copies of my wife's divorce decree, child support papers and two other documents associated with her previous marriage.

The local office where these papers were filed charges $3.00 per page for notarized copies.

They only put text on one side of the page.

Text is set to double-spacing (wasting 1/2 of the page).

Margins are set to 1.5 inches on each side, 2 inches at the top and 1.5 inches at the bottom, plus a .5 inch gap for headers and footers.

Overall a piece of paper is utilizing about 25% of the available space.

The total number of sheets needed for a single copy of these documents was over 300.

The total bill for making the neccessary copies would have been about $3,000.00! And that is just for making copies of documents that already exist, and putting a stamp/seal on them. Oh, plus $25.00 per copy for over night delivery, standard fee (not the actual price to send them, just what the County charges).

Even the local officials where I wanted to do the adoption said this was ludicrous, but that I was stuck because the County in which the divorce took place has the right to charge whatever they decide.
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Mel, 2 Mar 2009 @ 9:05am

NOT OK to pay for copies
For many people .08 per page is burdensome. I had a case that ran over 1000 pages. If I wanted a copy of it I simply couldn't afford it. I want court documents available online. I once had a court tell me my case record is unavailable and won't be available until long after the case is over. I had to prepare appellate briefs for that case without access to most of the lower case record. It was hopeless to cite to the record, which the appellate court required. Despite a law that says I'm entitled to access the case record, the lower and appellate court ignored that law—as they often do with other laws.
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ehrichweiss, 2 Mar 2009 @ 9:27am

Re: Free should involve a fee not part of my taxes
You do realize that it takes more of your tax dollars to employ people to the role that you suggest than it does to simply scan them and put them online for free, don't you? I'm guessing the answer is that you hadn't considered that.
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Anonymous Coward, 2 Mar 2009 @ 9:37am

Re:
The formatting of the document is not the fault of your local bureaucracy - it's the fault of the courts. The courts insist that all documents be double-spaced, 12-point type, one side only, with very wide margins and huge footers and headers. This is because, apparently, judges don't think courts waste enough money or are expensive enough, so more should be wasted on paper and making copies. The end result -- people who don't have the funds are shut out of the courts, and sometimes justice. And your local bureaucracy, which clearly isn't designed with citizens in mind (in fact, yours seems to be purposely trying to discourage document requests), get to set their own ridiculous prices, based on their level of disregard for citizens. And, all with the blessings of our court system.
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Michial, 2 Mar 2009 @ 9:37am

Re:
Why should my tax dollars be used to facilitate your adoption?

Paper costs money, bandwidth costs money, labor to make the copies cost money, labor to scan them in costs money, labor to stamp them costs money, the stamp costs money, the postage costs money etc...

If you want them then pay for them... and by the way $3000 is a small price to pay in an adoption....
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Michial, 2 Mar 2009 @ 9:40am

Re: NOT OK to pay for copies
WOW $80 is too much for someone that sounds like a lawyer????

Hmmmmmm I cry BS @ $350+ per hour....

Bandwidth costs money, pay for it with something other than my tax money....

Everything you receive via the internet costs someone money to make available even if it's free to you.
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ehrichweiss, 2 Mar 2009 @ 10:05am

Re: Re: Re:
First question: our defense budget is in the freakin' trillions of dollars at this point and you're going to complain about something that might cost 0.001% of that to implement and run for the next few years? Are you from the past?

Regardless of your concerns about taxes, one method is significantly cheaper than the other.

Non-free: you either choose paper distribution or electronic. Paper means you have to hire a lot of people to sit around all day(in case of increased demand) waiting to make copies. You have to pay them to find the documents, make copies and then ship. You also have to pay for a payment gateway(those are not free, not even to the government) and you have to pay someone to secure that gateway assuming you are using an online order form. If you are thinking about telephone or mail only access then you have to also hire people that answer the phones and take orders. Electronic distribution is even more fun. You pay for people to scan/submit to site, you pay for that payment gateway, you pay someone to secure that payment gateway and prevent someone from stealing credit card info, etc., you pay for someone to implement DRM(you did realize that's what this is right?) so they can't share links. You pay for a support staff since nobody is going to be happy with a system that they pay for but can't deliver. Do I really need to go on?

Free: scan it, put it online, maintain website. The only costs are in hiring people to scan/submit to the website, someone to maintain the site, and bandwidth(which is cheaper for a month than hiring one person to make copies for a week). There's no massive security to worry about since all one has to protect are backups and prevent website defacing. I could implement it for under $100 million which probably would include all costs for the next 5-50 years. I've done this for newspapers so the government wouldn't be any different.
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ehrichweiss, 2 Mar 2009 @ 10:07am

Re: Re: NOT OK to pay for copies
Bandwidth is CHEAP compared to employing someone to do the scanning/copying/delivery. That's a fact.

Again I ask, we have a trillion dollar defense budget and you're worried about pennies?
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ehrichweiss, 2 Mar 2009 @ 10:14am

Re: Re:
Why should MY tax dollars be used to facilitate your war? Your roads? Your "safe" airline flight? Police? Fire? FEMA?

Stop bitchin' about taxes. We all pay them and they inevitably go to things we don't want.

You are asking for a bureaucracy that will lose more money that it will ever make, OR it will be so cost prohibitive that only the rich will be able to afford to defend themselves.
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DCX2, 2 Mar 2009 @ 10:15am

Re: Re: Re:
And any local court house should have the local laws available in its library for free.

For free? You mean that the administrative costs for the secretaries doesn't come from taxpayer dollars? That the local courthouse has the climate control necessary for document preservation at no cost to the taxpayer?
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John Duncan Yoyo, 2 Mar 2009 @ 10:22am

Re: Re: Free should involve a fee not part of my taxes
I already paid for these documents to be produced once. They need to be open to the taxpayers. I can't imagine the cost to distribute is more than the cost of the gatekeepers.
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DCX2, 2 Mar 2009 @ 10:27am

Re: Re:
Your entire point rests on the scarcity of resources involved with physical copies. You would be naive not to believe that the inertia against moving to electronic copies is one grounded in price discrimination and price gouging that is available by controlling access to the documents.

You also set up a straw man. His comment had nothing to do with any of "your" tax dollars and everything to do with their ridiculous formatting requirements.
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Randy, 2 Mar 2009 @ 11:01am

I can think of one reason to keep them non free
most of the documents have personaly identifiable information, that is not redacted. I would rather someone have to pay to get my address/SSN/DOB/whatever. It would keep the russian and nigerian thieves from being able to do a google search to get my info. Plus, do you really want your next employer to see the dirty details of your divorce (where you or your spouse claimed something obscene like spousal and/or child abuse). That would put a taint on your future employment. It wouldnt matter if the complaints are true or not, it's in a offical court document so "it must be true".

transparency is all great and wonderful until you are the one that is under the microscope.
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hegemon13, 2 Mar 2009 @ 11:05am

Re: Re: Re:
"And any local court house should have the local laws available in its library for free."

Ahh, but remember the case in California, where you could only obtain copies of one municipality's laws by PAYING a ridiculous amount for a bound volume? It was covered on here a few months ago. That is not fair to the populace, to whom ignorance of the law is no excuse.

Besides, corporations all over the nation are going paperless and storing everything electronically because its cheaper. Yet, you claim that for our government, it is somehow going to cost more? Maybe an initial outlay of cash would be necessary, but it would actually save money in the long run.
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Luci, 2 Mar 2009 @ 11:10am

Re: Re: Re: Re:
You would pay the costs of document preservation, anyways. Why should you also have to pay to access these documents that your money has payed for, and continue paying for? Yes, free access to the library. Don't try to complicate things.
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jl, 2 Mar 2009 @ 11:23am

Why not?
For those who have issues with having "tax payer dollars" pay for this, don't they already pay for upkeep on things that people use regularly. If you go to the library, you are charged a modest library card fee, but you can access any book free. This would (and probably should) follow that same logic.

I don't understand the problem with these being made available online. The website and the posting of information is already in place. The issue is that you need to set-up an account and pay for use of cases you access currently. Theoretically, this could be modified fairly easily from an account set-up model to a user-registration model or even an open access model.
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Ima Fish, 2 Mar 2009 @ 11:39am

Re: Re: Re: Re:
"For free?"

God, there are two types of idiots on the net. The first simply cannot understand satire or irony. The second wastes type arguing semantics. You're in the second group.

I realize that nothing is truly free. However, it is free to access such content at the library, outside of any taxes you pay, of course. Duh.
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Anonymous Coward, 2 Mar 2009 @ 11:48am

Re: Re: Re: Re:
"First question: our defense budget is in the freakin' trillions of dollars at this point and you're going to complain about something that might cost 0.001% of that to implement and run for the next few years?"

And the winner of the hyperbolic red herring of the year goes to ehrichweiss for his comment entitled, "Re: Re: Re:". You must be so proud.

The only costs are in hiring people to scan/submit to the website, someone to maintain the site, and bandwidth(which is cheaper for a month than hiring one person to make copies for a week)

Look, I totally agree with you. I'd love free access to our laws. If the government can afford it and can do it efficiently, it should be done. I simply have my doubts that the government can do it more cost effectively than the private sector.
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Nate, 2 Mar 2009 @ 11:49am

Free Access to Court Documents
Ok,

So here is my 2 cents worth on this subject. I agree it is a large undertaking to make public every court document that takes place in this country. However, tax payers do not pay the bulk of court fees in this country. Has everyone forgotten:

1. whenever someone is brought before a judge in a criminal matter, the criminal is charged with the court costs. Only in matters where the person takes a court appointed attorney does the taxpayer actually get saddled with the cost.

2. When you bring a civil matter before the courts (such as businesses or people suing others) the people involved pay the court fees. Not our taxes

3. In auto accidents, the insurance agencies pay the court fees that we as consumers do not see. This makes it obvious that we are paying for those fees with our insurance premiums. Not our taxes.

There is no such thing as the taxpayers paying the bulk of the court cost burden. Use a little sense. As to data-housing on a server and making that available to the general public. Those costs are handed to the court system, yes, and rightly so. Since the courts charge a fee to file paperwork and start any legal proceeeding, those costs should cover whatever is needed to make the document/documents involved public. There is next to nothing of a cost for the average sized document to be placed online and made available to the general public. It is simply a matter of storing the file as a PDF and placing it accordingly on a public server.

This process in itself is reletively simple. You place the data on the SAN (again this is covered by the court filing fee), and placing a link to the file on the appropriate web server(s). That is it. Nothing more.

At some point in time people will wake up and realize that we are being screwed at every turn and asking for more. While yes, there are costs involved, we pay them every time we want to use the court system. Therefore, stop beating up the "tax system" as the scapegoat for this issue. The courts already charge us to use the system, under the law, they are requiredto make it available when we use it. All they have to do to cover the fees to make the law reality is raise the price for the filing fee to include those costs. Meanwhile since we pay to use the court system, there should be a realization that our "tax" burden for the court system is actually a burden for the Jail system that is grossly out of date.
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Anonymous Coward, 2 Mar 2009 @ 11:59am

Re: Re:
Case law *is* law.

The government cost of posting the content for free would be far less than the ultimate cost to citizens paying per-use (note the massive profit the Judiciary is apparently making off of the system). Furthermore, the current system introduces tremendous accounting overhead (which is passed on to the taxpayer).

But, the most compelling argument is simply that when public domain digital information is locked behind a transaction cost, the public loses out. The information is an order of magnitude less accessible, and follow-on innovations and uses become very difficult. Likewise accountability.
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Anonymous Coward, 2 Mar 2009 @ 12:04pm

Re: Re: Re:
You can always go to your local public law university's library and research the law for free.

Huh? Are you always so full of it? "Your local public law university". What a joke. Oh yeah, local communities all have "public law universities". Sure. Do us a favor and the next time you feel like making crap up, just keep it to yourself.
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Anonymous Coward, 2 Mar 2009 @ 12:09pm

Re: how about free electronic docs
There has been a general attack on the Freedom of Information Act (FOIA) since 9/11 by a government that does not believe that the "truth will set you free".

Actually, they do believe that the "truth will set you free". That's what they're afraid of.
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Anonymous Coward, 2 Mar 2009 @ 12:23pm

Re: I can think of one reason to keep them non free
most of the documents have personaly identifiable information, that is not redacted.

Then redact it.

It would keep the russian and nigerian thieves from being able to do a google search to get my info.

How's that? Someone can still get the information and then put it online where everyone can find it. That's false security.

Plus, do you really want your next employer to see the dirty details of your divorce (where you or your spouse claimed something obscene like spousal and/or child abuse). That would put a taint on your future employment. It wouldnt matter if the complaints are true or not, it's in a offical court document so "it must be true".

They can still get that information. There are companies that specialize in selling that kind of information to potential employers. Again, false security. Only with it being behind a pay-wall you might not be aware of it yourself.

transparency is all great and wonderful until you are the one that is under the microscope.

Pay-walls won't keep others from information on you, it just makes it harder for you to know about it. Ignorance is bliss?
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Rick, 2 Mar 2009 @ 12:50pm

Re: Re: NOT OK to pay for copies
Ok, bandwidth does cost money - I agree.

How do you suggest we charge people the .000000000000001 cents the bandwidth would cost per page?

Do you have change for a penny?
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Droslovinia, 2 Mar 2009 @ 12:55pm

Free?
SO let me get this straight. You're wanting the government to spend more tax dollars in making sure that all of the court documents, including some that might be quite sensitive and damaging, can be available to you for nothing (other than my tax money spent to make them available to you)?

I'm not arguing that we shouldn't be able to access court documents, but that has to be paid for. Why shouldn't the people who most directly benefit from them, attorneys, journalists, and other "lookey-loos" have to pay a small fee that can be used to maintain the servers and pay the clerks responsible for servicing those files? And why shouldn't people who misuse them be penalized to the fullest extent of the law?

And what's with all the "copyright" and paranoid FOA stuff? I'm an ardent progressive in virtually every way, and I just don't see the threat here. I've also used PACER extensively and don't understand why anyone not involved in an ongoing case actually needs the records unless they are using them for some improper purpose (yes, getting your tabloid story about a trial counts). PACER is still relatively new and getting worked on all the time, and here you are complaining that it's not perfect, free, and provided for your entertainment.

So what now? Are we going to complain about healthcare privacy laws (see also "Steve Jobs")??
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alteratives, 2 Mar 2009 @ 2:07pm

Re: Re: NOT OK to pay for copies
pay for it with something other than my tax money....

What exactly SHOULD be paid for with tax money if not making sure the rulings of law are not made aviable to run a nation under the rule of law?
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ehrichweiss, 2 Mar 2009 @ 2:54pm

Re: Re: Re: Free should involve a fee not part of my taxes
Exactly. On Godaddy(not the best choice by any means but a popular one) the cost is like $15/month for 1.5 terabytes of data(actually they say "unlimited" and the 1.5 TB figure is from the $8 plan but I want to be conservative here). I believe the government can afford that. Hell, I'll pay the first month and I'm not rich by any means.

So you and I wonder, where IS the real cost these idiots are rambling on about.
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ehrichweiss, 2 Mar 2009 @ 2:57pm

Re: Re: Re: Re: Re:
You need a new dictionary because "red herring" doesn't mean what you think it means, Skippy.

The government couldn't necessarily do it cheaper than the private sector, but they could do it cheaper than they are doing it now, AND provide it for free in the process.
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anonimoose, 2 Mar 2009 @ 5:22pm

You don't really think Lieberman is doing this out of the goodness of his heart, do you?

A simple check of major donors to him over the last 20 years will show a publishing company in his home state that has received many such favors over the years.

$.08 to you, but multiplied by tens or hundreds of millions of pages to this publisher who will download, reformat, and re-sell this information.
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Nobody, 2 Mar 2009 @ 5:26pm

Re: Re:
"Why should my tax dollars be used to facilitate your adoption?"

"and by the way $3000 is a small price to pay in an adoption.."

Obviously you didn't get my point. I never said anything about your tax dollars paying to facilitate my adoption.

The $3,000.00 they wanted was just for making copies I would need to file in a different state (where we lived). The actual filing and court fees, etc. for the adoption was about $10,000.00-12,000.

No way in hell should 3 copies of old documents be worth another 25-30% of the entire adoption process.

Now, again, I don't have a problem paying for hard copies, based on actual costs.

But come on!

I can go to the library and make 1,000 copies for about 10% of that, and actually save money by going to Kinkos and having someone do it for me.

The people necessary to make these duplicates are a filing clerk and notary (many times filled by one person) whose salary is already being paid by taxes. That means they are already being paid to do the work I asked for.

Even if you want to call this "extra" work, how is it that about 15-30 minutes worth of work from a filing clerk and notary is worth $2,700.00.

How many government employees do you know that are worth 5-10 Thousand dollars per hour?

Do you think that is a reasonable fee for an employee being paid by your tax dollars?

Don't try and throw in the cost of making/typing/preparing the documents either. That was already done with the divorce filing and judgement.

Hell, my local office said they could not believe how much the other county was charging!

And yes, bandwidth and hardware cost money...but they already have those systems in place.

Don't believe me? Just do a search for any local government office. They all have a web presence.

That means they already have IT people to manage the systems. Oh yeah, and they are already being paid for by, you guessed it, our tax dollars.

The hardware for storing thousands, even millions of documents is a whole lot less than the storage of the same documents in paper. No additional labor is required for someone to make a "copy".

And, if the systems were set up correctly (which can not be too hard), one local government office could "request" the files be transferred (electronically) from a different office without need of a notary to "prove" that it is an official version of the document.

I would have been happy to pay a reasonable amount for copies. The amount of money they demanded was far, extremely so, from reasonable.

If you still disagree, then you simply can not be reasoned with, and I hope (for your sake as well as everyone else's) that you never, ever get involved in anything to do with government.
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Anonymous Coward, 2 Mar 2009 @ 7:32pm

Re: Why ? ....
Because politicians rarely understand everything (or anything) there is to know about the movements they are trying to push forth.
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Anonymous Coward, 2 Mar 2009 @ 8:33pm

Re: Why ? ....
Because politicians rarely understand everything (or anything) there is to know about the movements they are trying to push forth.
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Dan, 2 Mar 2009 @ 11:46pm

Time on his hands!
Now that he is done campaigning for the republicans and irrelevant to the democratic caucus, he needed a new cause to while away his time. It also looks like he may jump the fence again, must be lonely.
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John (profile), 3 Mar 2009 @ 7:03am

Missing Documents
I've used PACER off and on for a few years now to follow the happenings a couple smaller cases. The 8 cents per page can add up to a lot if you are just a private citizen that has an interest in a case. Even 'small' cases can generate a lot of pages.

The thing that I have found most annoying about PACER is that many documents seem to either not ever get posted or take a very long time to show up. Each federal court seems to do things a little differently. Plus PACER only handles federal courts.

I don't have a real problem with them charging per page to cover the actual bandwidth and a little overhead. What I would like is more consistency when it comes to when and what documents are made available.

Now at the state and local level the situation varies a lot. Mostly for the worse it seems.
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Laser Haas, 3 Mar 2009 @ 7:43am

Court docket records
OUr case in eToys found fraud and perjury by the attorneys because of online docket review.

The participants in the system - are realizing that the public scrutiny of cases is finding errant behavior on a mass scale. Therefore they are resistant.

There is also the lobby from Lexis, Intellispace and Thompson etc., - who charge way more than 8 cents per page.

Some courts have even reacted by making documents online under seal for a period of time (just take a look at the eToys NY Supreme Court case 601805/2002) half the docket is Under Seal.

Transcripts are being placed under seal in indictment cases such as Petters and Dreier - for the sake of keeping the Public - OUT of the know - until the veiled agenda is accomplished.

OUr courts are abusing their power and making consistent rulings contrary to law in an arbitrary & capricious manner that goes far beyond cronyism into the realm of corruption.

We must fight hard to stop the lobby efforts to keep the information at bay - for the only proper public asset is public scrutiny. We pay for the system with our taxes and deserve the benefit of the Right to Know!
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