Paying for Public Records

Much to the delight of legal reporters and researchers who study the courts, PACER fees are under attack.  A lawsuit challenging the fees is pending in the Federal Circuit, and the media coverage of the suit is decidedly in favor of the plaintiffs. PACER allows the public to electronically access motions, complaints, briefs, and other documents filed in federal cases.  It charges a fee of $0.10 per page, which is far more than what it costs the courts to store these documents and make them available to the public.  By one estimate, “the cost of retrieving a document from PACER—including the cost  of  data  storage with a  secure  service  used  by many  federal  agencies—[is] only $0.0000006 per page.”  As the New Republic reported: “The PACER system itself brought in more than $146 million in fees during the 2016 fiscal year, even though it cost just over $3 million to operate.”  The courts use the extra money to fund other projects, such as courtroom technology needs, that would otherwise be paid for by funds appropriated by Congress.

It appears that the PACER litigation will ultimately turn on a question of statutory interpretation involving the legislation that created the program and allowed for the collection of these fees.  But I’m interested in the case because it raises larger issues about access to public documents.

You see, for the past year, I’ve been conducting a massive research project in which I collect the campaign finance documents for every candidate who ran for district attorney and enter information about the campaign contributions into a database.  (You can learn more about the project here. You can see a summary of our data here.  And our raw data is being compiled here.)

Because we are collecting information from all 46 states that elect their local prosecutors, I’ve been dealing with dramatically different public records regimes while collecting this data.  Some states are fantastic—they put this information online in a centralized state database.  Some even fully digitize that information, allowing you to search not only by candidate, but also by donor.  Other states have decided to leave the collection of campaign finance information to the counties.  And some counties do a terrible job providing access to that information.

More than one county has informed me that they have been unable to locate these records.  Some can’t find the records because they do not have a formal filing system.  Some can’t find them because they keep only paper copies of these records, which were damaged through some sort of accident.

Other counties do a perfectly good job retaining these records.  But they refuse to allow access to the records without significant payment.  For example, one county in North Dakota insisted that I send a check for $50 before they would even look for the responsive documents.  And while I can understand why counties would need to charge for making physical copies and mailing those copies, some counties insist on charging fees for emailing documents—treating email pages no differently than physical copies for fee purposes.  (Here is a recent op ed that I co-authored with a student that describes some specific problems in Kansas.)

I have even encountered counties that charge fees higher than what is permitted by their state open records laws.  One county has a posted fee schedule of $1.00 per page, even though state law only permits charges of 25 cents.  When I asked about the discrepancy, the county clerk responded by waiving the fee.  Another county in different state with a 25 cent per page cap invoiced me for 50 cents per page.  When asked about the cap, the county insisted it had made a mistake—of course they only meant to charge me the statutorily-permitted fees. 

Because I work for a public institution, I routinely asked that these fees be waived.  A small number of counties granted those requests.  But most didn’t.

The responses that I received when I asked for a waiver were interesting.  Some counties said that they never grant waivers—even though the state statutes specifically give them the power to waive—because they want to treat everyone the same.  Several county officials told me that they were unable to grant waivers because their offices depended on these fees to stay operational.  Their state and local governments have cut their tax revenues to such a degree that they cannot afford to operate their county offices without charging people fees.  In other words, the offices were charging these fees not only to support the time an effort of responding to individual requests, but also to offset the ordinary costs of running their government office.  They were using these fees to make up the shortfalls in their budgets.

I find that state of affairs very troubling.  I appreciate that user fees are quite popular, and that they are touted as an efficient way to ensure that those who are actually benefiting from services are the ones paying for them. But even if you might ordinarily support user fees for some government services, I don’t think it is a good idea to depend on fees to run your government.  Governments aren’t business; they are governments.  And we should make sure that they operate even when people don’t “buy” their goods and services.

I am especially troubled at the idea of charging fees for information like campaign finance data.  That is because we make campaign finance data publicly available in order to ensure transparency and accountability.  For example, if my DA failing to indict officers involved shootings of civilians, I need to know if she is also taking money from police unions.  I need to know because it helps me to evaluate her charging decisions.  And if I disagree with my DAs charging decisions, my only recourse is to vote her out of office.  But I need to understand those decisions in order to make an informed decision at the ballot box.  But if my county clerk is going to charge me $50 before even trying to locate those documents, then I am less likely to request them and thus less likely to find out about the donations.  What’s worse, the people who aren’t going to spend $50 to check the campaign finance records of their elected officials are also the same people who are unlikely to be donating to campaigns.  Put differently, it seems bizarre that one of the most important checks we have on money in politics—transparency about that money—can be frustrated by requiring people to pay additional money in order to get access to that transparency.

I am glad that PACER fees are facing scrutiny.  And I am hopeful that they will be lowered.  But I hope that our conversation about document access fees can extend beyond the federal courts.  Some state courts charge even higher fees than PACER.  More importantly, if we decide to deal with issues like corruption through disclosures rather than direct regulation—i.e., making campaign finance information publicly available rather than outlawing campaign contributions—then we shouldn’t charge fees to see those disclosures.