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Wednesday, February 13, 2019

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.

Posted by Carissa Byrne Hessick on February 13, 2019 at 11:15 AM in Carissa Byrne Hessick, Law and Politics | Permalink

Comments

To those who compare PACER records to things like driver's licenses (and university tuition), where the government is allowed to charge more than the cost of the services delivered and use the surplus for other purposes: one premise of all the objections to PACER is that public records, and particularly judicial records, are importantly different from these other things.

Put simply, citizens of a democracy have a right to monitor their government. Subjects of a rule of law legal system have a right to observe their legal system and learn how the law works on the ground as well as in the books, see that justice is delivered without favor, and organize politically around judicial outcomes. Access to judicial records is a central component of democratic governance under law.

The same cannot be said for drivers licenses and such.

Posted by: Paul Gowder | Feb 18, 2019 8:57:49 AM

Public entities, of course, often do charge user fees beyond the marginal cost of maintaining the service. Sometimes that policy is designed to lower demand for the service (like my town paying for trash collection), and sometimes it is explicitly designed as a fundraiser (like a public school bake sale). The analogy to PACER fees isn't perfect, but it is instructive.

In any event, it should ultimately be on Congress to make the decision on PACER fees, as I try to explain here:

https://interdependentcourts.com/2019/02/14/the-pacer-class-action-and-the-problem-of-court-funding/

Posted by: Jordy Singer | Feb 15, 2019 7:58:42 AM

El Roam--

Let's see if they also introduce a bill to make the SAT, the driver's license, car tabs, and the concealed carry permit free.

Posted by: Indigent | Feb 14, 2019 4:36:20 PM

As we write:

"House members reintroduce bill to make electronic court records free to public"

https://www.jurist.org/news/2019/02/house-members-reintroduce-bill-to-make-electronic-court-records-free-to-public/

Thanks

Posted by: El roam | Feb 14, 2019 3:06:08 PM

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.”

-----------
What if the DMV charged more for driver's licenses than it cost to operate the DMV?

What if colleges charged more for tuition than it cost to provide lectures? What if tuition money was being siphoned off for research, for instance?

Posted by: Motor Vehicle Collusion | Feb 14, 2019 3:48:55 AM

If your driver's license is a public record, would it be unconstitutional to charge for that? What about a concealed carry license?

If a driver's license is a private record, could someone agree to make it public so they could get it for free?
Would forcing someone to make it public to get it for free violate their right to privacy?

Posted by: New Public Record | Feb 14, 2019 3:44:01 AM

Just to quote the first circuit,concerning the issue of" effective free speech" here:

It is firmly established that the First Amendment's aegis extends further than the text's proscription on laws "abridging the freedom of speech, or of the press," and encompasses a range of conduct related to the gathering and dissemination of information.

Here:

https://caselaw.findlaw.com/us-1st-circuit/1578557.html

Thanks

Posted by: El roam | Feb 13, 2019 2:11:37 PM

Interesting.It would be just worth to note, that free speech and freedom of information ( act ) are definitely involved here. Correct, this is not expressive issue, yet, courts in US, have held not once,that" effective free speech "is an issue of free speech.Effective,that is to say, that one must establish and gather and consolidate information, in order to exercise his free speech right.What is described in that post,touches it directly,by all means so.

Also,you mention a gap of cost( 0.10 Vs. 0.0000006 per page)but typically,one must distinguish between direct costs,and indirect costs(in operational terms).

Yet,Philosophically,we could claim the following:

The law typically, is meaningless without rulings, interpretation, and precedents. That's life. But, not knowing the law, can't dismiss no one. Clear fact !! This is not a defense at all ( almost ). So, public,let alone, public servants, must have free access to documents of such ( at least rulings ) in order to understand and obey the law.

That reminds me, very interesting case recently held In the eleventh circuit, I quote what is all about :

Today, we are presented with the question of whether the annotations contained in the Official Code of Georgia Annotated (OCGA), authored by the Georgia General Assembly and made an inextricable part of the official codification of Georgia’s laws, may be copyrighted by the State of Georgia.Answering this question means confronting profound and difficult issues about the
nature of law in our society and the rights of citizens to have unfettered access to the legal edicts that govern their lives.

And finally :

Thus, we conclude that the annotations in the OCGA are attributable to the constructive authorship of the People. To advance the interests and effect the will of the People, their agents in the General Assembly have chosen to create an official exposition on the meaning of the laws of Georgia. In creating the
annotations, the legislators have acted as draftsmen giving voice to the sovereign’s will. The resulting work is intrinsically public domain material, belonging to the People, and, as such, must be free for publication by all.

End of quotation:

The ruling can be found here:

http://media.ca11.uscourts.gov/opinions/pub/files/201711589.pdf

And much more, but falling short here....

Thanks

Posted by: El roam | Feb 13, 2019 1:11:40 PM

Hear hear. I have never been able to understand how we can claim to be operating a democracy under the rule of law when there's a fee charged to citizens for seeking public information about the conduct of their officials.

Posted by: Paul Gowder | Feb 13, 2019 11:20:43 AM

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