Nonprofit Forced To Delete Thousands Of Court Documents Obtained With A Fee Waiver Because PACER Is Greedy And Stupid

from the if-you-can't-pay-us-twice-for-these-documents,-then-I-guess-you-can't-ha dept

If you're not familiar with the Free Law Project, you should be. It's a nonprofit that does everything it can to make access to court documents free. It all starts with the RECAP extension, which automatically saves copies of documents downloaded from PACER to CourtListener.com, giving people without PACER accounts and/or the funds (or patience!) to utilize the federal government's broken-down, overpriced system, access to federal court documents.

Unfortunately, the Free Law Project still has to play by PACER's exceedingly stupid rules, even when it's doing nothing more than automatically archiving documents accessed by PACER users with the RECAP extension enabled. The US Courts system continues to believe it needs to generate a profit, even when it does nothing more with millions in PACER fees than purchase new perks for the people who work for the court system or have the ability to actually visit federal courthouses.

That's not what PACER fees are supposed to be used for. They're supposed to be used to modernize the PACER system and eliminate barriers to online access -- the chief among those being fees. Instead, fees have increased while the front end of PACER -- along with its completely broken search function -- have mostly remained unchanged.

The US Courts PACER program has always been extremely mercenary, even when it's engaging in acts of temporary benevolence. Users can sometimes obtain fee waivers to lower the cost of accessing multiple documents. In this case, a researcher obtained a waiver and accessed thousands of court records. Great news for the beneficiaries of the Free Law Project's CourtListener site… or so you would think.

But that's not how this works, as the Free Law Project recently tweeted. [Threadreader version.] It had to delete thousands of court records this researcher legally obtained with a fee waiver because the federal court system says users with waivers can't do what they want with the data and documents they've obtained.

We scraped these records for a researcher using a fee waiver they got. According to the fee schedule, any content that you get while using such a waiver cannot be shared. This is the extremely absurd official policy:

If you can't read/see the embedded picture, it contains a portion of the restrictions on users who secure fee exemptions:

- the user receiving the exemption must agree to not sell the data obtained as a result and must not transfer any data obtained as the result of a fee exemption, unless expressly authorized by the court…

This means the Free Law Project downloads the content as instructed by the RECAP extension. Then it has to delete the content to comply with the user's fee exemption. Why does it have to do this? Because the federal court system says so. And why does the court system say users with fee exemptions can't share the documents with others? Well, I'm sure court reps would say several things in response to this question, but none would be as true as the answer once given to the Free Law Project:

Once, in a fit of honesty, a high-level member of the AO [Administrative Office] explained that the reason for this was because otherwise it would undermine the fee schedule.🤯

In other words, if researchers could share their raw data, the AO wouldn't make as much money off court data

PACER is here to provide access to court documents. But not without making some money first. Hence the numerous restrictions on seldom-granted fee waivers. As the Free Law Project points out, this is not how PACER is supposed to work.

Obviously, this contravenes the goal of PACER. It also makes reproducing research largely impossible.  

The documents were obtained legally. But the court system says it's against the rules for another party to continue to retain them. And now documents that could have increased the public's understanding of the court system have been vaporized because the government doesn't want the PACER money train even slightly derailed. And stupidity like this is only going to continue until PACER is deprived of its revenue stream with legislation making PACER access free.

Filed Under: court documents, free law project, pacer, recap, transparency, us courts
Companies: free law project

Fourth Circuit Appeals Court Says Right To Access Court Documents Begins When The Documents Are Filed

from the suck-it,-clerks dept

Courthouse News Service has obtained a significant win in its lawsuit against court clerks in Virginia -- one that soundly affirms the First Amendment right to access court documents. This isn't the only place CNS is fighting for its First Amendment rights, but this decision affects everything in the Fourth Circuit, which covers Maryland, North Carolina, South Carolina, and Virginia.

Here's the battle Courthouse News Service has been fighting on several fronts, assisted by several other news agencies and First Amendment activists.

The right of access at the core of the legal slug fest, which included attempts by the clerks to hide evidence of delay, is a tradition that goes far back in time. When cases were filed in paper form, news reporters traditionally checked the new civil complaints at the clerk’s counter where they were usually gathered in a box or tray.

That stack of new complaints regularly contained news about major legal disputes in the community covered by the court, ranging from financial wrongdoing to environmental disputes to accidents and disasters.

The intake clerk placed new paper cases in the box when they crossed the counter — in other words, contemporaneously with their filing.

That tradition was carried forward into the electronic age by federal courts and a long list of state courts in Hawaii, California, Nevada, Utah, Georgia, Alabama, New York and Connecticut.

But a similar list of courts broke with tradition. They took advantage of the switch to e-filing and pushed the press and public behind clerical functions that, in St. Louis for example, took between a week and two weeks to complete. Those delayers include courts in Maine, Vermont, Oregon, North Carolina and Texas.

In this particular case, court clerks in Norfolk and Prince William County (both Virginia) decided they no longer needed to provide prompt access to filed lawsuits, claiming the move to electronic filing justified delays that were sometimes measured in weeks. Courthouse News said this was ridiculous. Also, unconstitutional. The district court agreed. The clerks appealed, and now have established precedent [PDF] that forces them to speed up processing of filed lawsuits.

Here's how things were going before CNS filed its lawsuit:

[I]n May 2018, the City of Norfolk court made only 19% of the complaints available on the day of filing, and 22% of the complaints were not available until two or more court days after filing. Similarly, in July 2018, the Prince William County court only made 42.4% of the complaints available on the day of filing and 41.5% of the complaints were not available until two or more court days after filing.

And here's what it looked like after its lawsuit was filed:

[B]oth Clerks significantly improved access to documents in their courts without hiring any new employees or changing employee or court hours. By the end of November 2018, the Norfolk City court made 92.3% of newly filed civil complaints available on the day of filing and 100% of complaints available within one court day of filing. Similarly, for the last three months of the tracking period, the Prince William County court made at least 88.1% of the complaints available on the day of filing and approximately 96.5% of complaints were available within one day of filing.

So much for the argument that the intricacies of modern day electronics made it impossible to provide same-day service. Given this new alacrity -- one apparently instigated by litigation -- the lower court said clerks must make newly-filed complaints available on the same day of filing. Minor deviations were acceptable "due to extraordinary circumstances," but the baseline was as close to "contemporaneous" as possible.

The Clerks appealed. They raised several procedural arguments, but the Fourth Circuit doesn't like any of them. To begin with, the case certainly isn't moot, not without the clerks' offices not making a formal change in policy that instructs clerks to make filings available the same day they're filed.

While the Clerks’ improvements in rates of access are commendable, absent the relief Courthouse News sought, “nothing bars [them] from reverting” to the allegedly unconstitutional rates of access in the future. Porter v. Clarke, 852 F.3d 358, 365 (4th Cir. 2017). The case is thus not moot.

They also argued the district court had overstepped by meddling in a case involving city and county officials. Wrong again, says the court. No injunction was granted so the court isn't setting policy for local officials. Instead, this court -- like the court before it -- is handing down a declaratory judgment that sets the standard for constitutionality, which even state and local officials must follow.

The clerks also argued that, while there is a presumption of access to court documents, this presumption doesn't override the clerks' right to take their time making documents available. According to the clerks, the First Amendment right of access doesn't attach until a judge takes action in a case. You could not be more wrong, says the Appeals Court.

That argument misreads precedent — the analytical approach complements the experience and logic test without supplanting it. Of course, a First Amendment right of access exists as to some documents “submitted in conjunction with judicial proceedings that themselves would trigger the right to access.” Id.; see also In re Wash. Post Co., 807 F.2d 383, 390 (4th Cir. 1986). But that does not mean that the First Amendment right of access to a document never exists independent of and prior to a related judicial proceeding. Rather, the experience and logic test can and sometimes does independently furnish the basis for a First Amendment right of access to a judicial document or to judicial proceedings. See, e.g., In re United States, 707 F.3d 283 (applying the experience and logic test to § 2703(d) orders); Baltimore Sun Co v. Goetz, 886 F.2d 60 (4th Cir. 1989) (same, to search warrant affidavits). And as in a similar case recently decided by the Ninth Circuit, nothing in the record before us demonstrates that the tradition of access to complaints “conditions [that] access on judicial action.” Courthouse News Serv. v. Planet, 947 F.3d 581, 592 (9th Cir. 2020) (“Planet III”). In sum, the experience prong supports a First Amendment right of access to civil complaints, even before any judicial action in the case.

The court holds that in this judicial district, the First Amendment attaches as soon as lawsuits are filed. Excessive delays in making them available is unconstitutional.

The press and public enjoy a First Amendment right of access to newly filed civil complaints. This right requires courts to make newly filed civil complaints available as expeditiously as possible. After considering all of the evidence offered at trial, the district court found that the facts of this case demonstrate that the Clerks did not do so, and so violated the First Amendment.

After months of being jerked around by clerks who obviously had the capability to make filings available nearly immediately, Courthouse News walks away with an affirmed win and some handy precedent that should make its other legal battles run a bit more smoothly.

Filed Under: 1st amendment, 4th circuit, access, court documents
Companies: courthouse news

Federal Court System Pushes Back Against Free Access To Court Documents

from the your-tax-dollars-hard-at-work-demanding-more-tax-dollars dept

Never underestimate the desperation of a government entity being asked to manage its money better. After years of mismanaging the millions of dollars the court system rakes in every year, the federal judiciary has believed for years that "free and open access" to court documents should be way less than free. The court's PACER system puts a paywall between citizens and court documents. On top of this, it places an antiquated front end that further separates citizens from court documents, charging them per page of useless search results.

The PACER system has been a frequent target of litigation and legislation. Unfortunately, these efforts haven't resulted in an overhaul of the system. The system continues to treat infinite goods as paper documents, charging users per page of downloaded PDFs or docket listings. It also charges per search, allowing the system's far-from-useful search functions to generate revenue for the courts. The money from PACER was supposed to make PACER better and lower the cost of usage. Instead, it has been used to buy furniture and flat screen TVs for those fortunate enough to live within walking/driving distance of a federal courthouse. As for everyone else, the government collects up front and provides very little in the way of improvements for telecommunicators.

Legislators are once again pushing for the system to be free for most citizens. And the courts are pushing back, claiming being unable to charge per page fees would irreparably harm the recipients of these fees.

Leaders of the federal judiciary are working to block bipartisan legislation designed to create a national database of court records that would provide free access to case documents.

[...]

James C. Duff, director of the Administrative Office of the Courts, has asked House leaders not to schedule a vote on the bill that he said would require a hefty increase in court filing fees to pay for a “massive, untested, disruptive, and costly overhaul.”

“The idea of making it free for everyone is certainly attractive, but it’s not free,” Duff said in an interview.

Duff is right. It isn't free. Taxpayers pay judges and clerks to generate documents. Taxpayers front every civil and criminal action the federal government gets involved with. Citizens also pay filing fees when they engage in private litigation. So there's plenty of money flowing into the system. But the system seems to believe this should be a one-way stream of revenue that provides almost no benefits to those funding it.

James Duff seems to believe the "costs" of providing PDF downloads for free should be "offset." And he's asking taxpayers to continue offsetting the costs of documents they've already paid for. Somehow Duff has talked himself into believing filing fees would skyrocket, preventing people the court system is already screwing with PACER fees from utilizing this avenue of redress.

Duff said higher fees for litigants in civil and bankruptcy cases could represent an “outright barrier to seeking relief in the federal courts.”

LOL but no. Plaintiffs who can't pay the fees can ask the court to waive their fees. It's not impossible for poorer plaintiffs to file lawsuits. This disingenuous complaint misrepresents the fact that most plaintiffs do not ask for waivers and are willing to pay fees to litigate in federal courts. The litigants who most often seek fee waivers are federal prisoners, a taxpayer burden few government officials ever find time to complain about.

Duff also sees himself as the great equalizer, even if protecting the PACER status quo will continue to negatively affect our nation's poorest citizens. According to Duff, free access to all will make corporate fat cats even fatter.

A free database, he added, would be a “financial windfall” for the large banks, legal-database companies and research institutions that currently fund 87 percent of the costs of the online court records service.

First off, it seems like the judiciary could continue to collect fees from PACER "whales," much in the way many free internet services do. Second, this refusal to allow free access to millions doesn't suddenly make things "fairer" for them just because the judiciary isn't willing to engage in corporate welfare.

Not only is the judiciary wrong about the pros and cons of free access, it's also wrong about how much free access would actually "cost." The judiciary says it will cost at least $2 billion over the next five years to give citizens free PACER access. Legislators and researchers say it will cost far less: ~$2 million/year. That's an unnoticeable drop in the federal judiciary budget bucket. The judiciary wants $7.65 billion to cover its costs next year. It seems unlikely anyone would miss a 0.026% budget shortfall.

That makes this statement from Judge Reggie Walton (formerly of the FISA Court) unintentionally hilarious.

U.S. District Judge Reggie Walton in Washington said court proceedings and documents should be transparent and accessible. But if Congress mandates the creation of a new, free database of records, lawmakers have to provide the funding. He is concerned about the financial impact on the court’s day-to-day operations.

Whew. Can you imagine trying to do without 0.02% of your yearly budget? You might have to use a coupon on something a few times a year.

This pushback against free access is nothing more than the government feeling it should be able to maintain a wall between what it does and the people that pay for it. The federal judiciary is showing its entire entitled ass. Citizens should have free access to court documents. They've already paid for them once. There's no reason the government should continue to pretend it's the petty librarian manning the Xerox and charging visitors $0.10/page for photocopies. All we're asking is for the judiciary to recognize it shouldn't place a paywall between taxpayers and infinite goods. But, according to courts, this is something we don't deserve and aren't entitled to ask for.

Filed Under: access to court documents, court documents, federal courts, judges, judiciary, pacer, paywall

Ohio Court Sanctions Lawyer For Sharing Publicly-Available Court Documents With Journalists

from the seems-kind-of-shady,-this-sharing-of-public-documents... dept

The sort of thing that happens all the time -- the sharing of public documents concerning public litigation -- has resulted in sanctions against the lawyer who shared them with a local journalist. An Ohio judge has issued a chilling decision [PDF] (currently being appealed) that basically says that any sharing of public information that could be viewed as adversely affecting the other party in litigation is not permitted. The ACLU's Jonathan Peters has more details.

A few times during the representation, [plaintiff's attorney Peter] Pattakos communicated with the editor of Cleveland Scene, the alternative newsweekly. He provided the editor, a friend of his, with public court documents related to the suit, including the complaint, the briefs opposing a summary judgment motion, and the affidavits supporting the motion. Pattakos also encouraged the editor to report on the case when it was set for trial. Notably, none of the documents was under seal, and no gag order had been issued to the parties or their counsel. The court proceedings, too, were open.

Scene published a story on the first day of jury selection that characterized the claims against the school, prompting the judge to question the jurors about the coverage. Two said they had seen the headline but would not be influenced by it. Soon thereafter, the judge declared a mistrial for unrelated reasons. Eventually, a new jury was selected, the trial was held, and Pattakos’s clients won their case.

A few months later, however, the school’s attorneys asked the judge to sanction Pattakos for his “involvement in the publication of an inflammatory article related to this case.” The judge complied and ordered Pattakos to pay nearly $11,000, covering the cost to the school of questioning the jurors after the article’s publication and of bringing a sanctions motion.

A look at the decision shows the judge making a lot of conclusory statements -- the sort of thing judges often chastise plaintiffs and defendants for making in their legal filings. In it, much is inferred about Pattakos' intent, even though there's little evidence supporting these assertions or their supposed effect on the outcome of the litigation.

Mr. Pattakos’s involvement in publication of the Scene article was a malicious attempt to injure and was intended to “harass “each of the defendants. Mr. Pattakos had a purpose to defame defendants when he instructed Mr. Grzegorek on January 20 "Get your reporting pants on. Or at least tell one of your reporters to get his reporting pants on " and on March 30, 2015 notifying Scene that the trial was about to begin. He had abandoned hope of settlement.

Mr. Pattakos had previously supplied to Scene all of the information that it ultimately published. Although Mr. Pattakos did not write the article, he knew that the thrust of any reporting was likely to be to discredit the defendants and that, if believed by members of the public, the reporting would “injure” them. Urging Scene to begin coverage constituted initiating harassment.

[...]

While the information communicated to Scene by Mr. Pattakos may well have been protected by Rule 3.6(b) [which allows the dissemination of publicly-available court documents and scheduling information], his urging that reporting begin once the jury was selected raised a substantial likelihood that the jury would read about his clients claims.

Although there is no evidence that Mr. Pattakos knew when an article would be published, what it would contain, or that particular adverse comments about the defendants would be generated, he did know what information he had already provided to Scene. Thus, he knowingly put in motion both the news media process and the information contained in the article. If one lights a fire in a forest that starts a forest fire, he is responsible for the forest fire even if he did not intend it.

Pattakos' mild urging that a Scene writer "get their reporting pants on" is akin to shouting "Fire!" in a crowded forest… and then walking away while it burns? Because the defendants claimed this single article adversely affected its settlement attempts, the court has decided this lawyer should be punished for doing something lawyers do every day -- and something that is apparently permitted by the rules governing attorney conduct.

But the opening of the same decision condemning Pattakos' behavior opens with a recitation of the events leading up to this decision, which includes a period of three years (February 2012-January 2015) where the defendants made zero effort to make counteroffers to the plaintiff's settlement demands. It appears the defendants truly believed the jury would side with it and allow it to escape litigation without having to pay a settlement and are now looking for someone to blame because it ended up paying out $400,000 to the plaintiff and opposing counsel.

But for all the noise the judge makes during this sanctions award, the single article published by the Scene appears to have had zero effect on the outcome. And yet, the judge still felt sanctions were proper, and handed down a decision that turns journalists into misconduct accomplices should a lawyer happen to point them in the direction of publicly-available documents, especially if the opposing counsel doesn't like the outcome of the litigation. This isn't a trivial outcome, should the Ohio Appeals Court agree with the lower court's reasoning.

If upheld, the trial judge’s novel use of the frivolous-conduct statute will create a precedent that could make attorneys wary of any but the most trivial interactions with the press. That outcome would restrict the public’s practical ability to receive information about court proceedings—and undermine the principle that “free and robust reporting, criticism, and debate” about court proceedings, as Justice Brennan once wrote, “can contribute to public understanding of the rule of law” and improve the legal system’s quality “by subjecting it to the cleansing effects of exposure and public accountability.”

Short of a lawyers publishing self-interested takes on ongoing litigation, it's hard to see how just informing journalists of new documents or upcoming arguments/testimony violates guidelines for attorneys. Just because the outcome was unfavorable to one party doesn't mean the prevailing party somehow urged the press to push jurors towards a decision favoring the legal rep who gave reporters a head's up. There's a lot of implication being drawn from this harmless action by the judge in this case. Hopefully, the Appeals Court will overturn the sanctions and keep the public from being further separated from the judicial process.

Filed Under: court documents, journalism, lawyers, public records, reporters

Senator Leahy Asks Why The Federal Court System Dumped A Bunch Of Court Documents Down The PACER Memory Hole

from the bring-them-back dept

Last month, we were among the first to report that the federal court system's electronic document system, PACER, had deleted a bunch of cases. The folks who run PACER came back with a completely nonsensical defense of the move, claiming they were updating some systems and some of the documents were on older systems that weren't compatible. Of course, none of that explains why no one figured out how to move those documents to the more up-to-date system. Nor why PACER gave no prior notice of the deletion. Nor why it didn't even try to work with any one of the many, many public repositories of legal documents out there. Instead, the cases were just deleted from electronic existence.

Senator Patrick Leahy is now asking why.

Created over 25 years ago, PACER is home to millions of court documents that were previously accessible only by requesting them from the relevant court. This often involved a trip to the court clerk's office and cost considerable time and money. While PACER is not perfect, it provides a significant benefit to the public: at the stroke of a few keys, the public can now search for important briefs, court orders, written opinions, and other related filings, and receive the information instantaneously. Servicing over a million users in the last few years alone, PACER has not only dramatically improved access to information, it has helped increased transparency of the federal judiciary.

Wholesale removal of thousands of cases from PACER, particularly from four of our federal courts of appeals, will severely limit access to information not only for legal practitioners, but also for legal scholars, historians, journalists, and private litigants for whom PACER has become the go-to source for most court filings. It is additionally concerning that this announcement was made without any warning to the public, and without prior notification or consultation with Congress. Moreover, the announcement did not detail what steps, if any, are being taken to ensure that these important case files are properly preserved.

We live in a digital age. Requiring requesters to travel to the clerk's office of individual courts to retrieve actual documents, or to submit an email request and wait several days for a response, is a dramatic step backwards from the centralized system that PACER provides. Furthermore, it is reported that requests made by email to individual courts could incur a $30 to $60 processing fees--a troubling increase in costs compared to the 10 cents per page that is currently charged to retrieve documents from PACER. PACER was designed to provide easy and affordable access to all members of the public, not just those who have the time and resources to submit and numerous requests to the courts.

He concludes by noting that he urges the Administrative Office of the courts to "take immediate steps to restore access to these documents." Of course, it would be even better if they finally made PACER free and open to the public, but not deleting past cases would at least be a non-negative step.

Filed Under: court documents, memory hole, pacer, patrick leahy

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

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.

Filed Under: court documents, joe lieberman, pacer