Intellectual Property Law

DOJ Pays $4M a Year to Read Public Court Documents

By Ryan Singel

The federal court system charged the Department of Justice more than $4 million in 2009 for access to its electronic court filing system, which is composed entirely of documents in the public domain.

That’s according to government documents made public through a Freedom of Information Act request by open government advocate Carl Malamud (pictured right). Malamud sought the information to prove that an open source repository of U.S. legal materials — a project called Law.gov — could eventually save the government a billion dollars.

The Administrative Office of the U.S. Courts runs the search system known as Public Access to Court Electronic Records, or PACER. PACER charges citizens, journalists, corporate lawyers and even the Attorney General $.08 per page to look at court filings in U.S. District Courts. The system pulled in nearly $50 million in 2006. The contract between the PACER office and the Justice Department began in 2002 with a charge of $800,000, which quickly rose to more than $4.2 million in 2009.

PACER is a buggy, barebones system with an interface seemingly designed in 1995. Though all the court documents it indexes are in the public record, the U.S. Court system refuses to make them available for bulk download. PACER also does not cover tax courts or the Supreme Court. (Disclosure: Wired.com nurtures a hefty PACER bill).

To cover the gaps, the Justice Department paid West Publishing, a giant legal publisher, $5 million in 2005. That contract promised the DOJ online access to the opinions of the Supreme Court, tax courts records, appeals court decisions and bankruptcy court. Also covered were state laws and court rules, the Congressional record, the U.S. code and federal public laws.

West, and its competitor, Lexis Nexis, buy court data in bulk, reformat it and add proprietary citation codes. They then license the database of public documents at high rates to libraries, law firms and government agencies. Even the U.S. Court system pays West’s high license fees to access public court documents that West purchased from it.

The Justice Department isn’t alone in paying for access to court documents for PACER. In fact, it seems to be standard operating policy. The IRS, for example, spent $950,000 in 2008 (.pdf) to see the same documents.

Malamud, who runs Public.Resource.org, has spearheaded a campaign to make court records available in bulk, calling the court system an integral part of the country’s operating system. He has filed 34 requests with federal agencies and is preparing to send another 100 to offices in the executive branch.

A Firefox plug-in called RECAP, created by Princeton students, uploads court documents to a public archive any time a user goes into the system, while programmer Aaron Swartz took advantage of a pilot program offering free access to download 18 million court documents (that earned him an FBI investigation).

The Administrative Office of the U.S. Courts defends the PACER system, saying that citizens who sign up for accounts each get $10 a year of free documents.

But the search function is intricate and inflexible, and lacks a way for users to be notified when a case is updated. And in the age of Google, it is absurd to charge citizens to search for the name of a person in a lawsuit. Even looking at the docket sheet — a short form list of all actions in a given case — costs $.08 a page.

U.S. Court spokesman Dick Carelli defends PACER, saying that 20 percent of searches on the site are free and that it’s not so odd for one agency to pay another one for services.

“Twenty percent of the federal judiciary budget goes to paying the General Services Administration, who is our landlord,” Carelli said.

The court system is currently surveying users of its electronic systems and changes could come after the review, according to Carelli. He confirmed that the U.S. court system has nationwide contracts with West and Lexis Nexis, including access to federal court documents not indexed by PACER.

“I think what the judiciary is paying for is the efficiency of doing research on those commercial sites,” Carelli said.

But Malamud says the court system is just stuck with a mainframe mentality, and that there needs to be a total retooling of the system for accessing and publishing government court documents.

“It is a people problem, not a technical problem,” Malamud said. “There are people who have been there 20 years working on the system and they just haven’t kept up. The internet revolution just passed the U.S. courts by.”

Malamud laments that things as important to history as Supreme Court briefs aren’t readily available.

“Say you want to read the briefs in Brown vs. Board of Education,” Malamud said. “They are just not there.

“It should just be there,” Malamud said. “Here is the opinion, here’s the briefs and here is the oral argument. It’s a no-brainer.”

Photo: Joi Ito

See Also:

• Online Rebel Publishes Millions of Dollars in U.S. Court Records
• Free the Patents and Laws, Activist Tells Feds
• Death to Sleepy Stock Data
• FBI Investigated Coder for Liberating Paywalled Court Records
• Firefox Plug-In Frees Court Records, Threatens Judiciary Profits

Full post as published by Threat Level on December 01, 2009 (boomark / email).