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PACER Fees - Class Action Update

By Barry Skidelsky, Esq.
Chair, NYSBA Entertainment, Arts and Sports Law Section
bskidelsky@mindspring.com or 212-832-4800

You might be interested to know (if you don't already) that in National Veterans Legal Services Program v. United States, the United States Court of Appeals for the Federal Circuit is currently considering whether the federal government violates the E-Government Act of 2002, when it charges fees to access federal court documents that exceed the marginal cost of providing those documents.

The costs for providing digital copies of those court documents are arguably close to, if not at, zero. Query the possible utility of that nominal cost argument to other matters, such as those involving digital copies of media and entertainment files. In any event, various party and amici briefs were recently filed in this appeal, including an amicus brief from several judges who are expressly neither for nor against the plaintiffs. Oral argument has yet to be scheduled.

The Public Access to Court Electronics Records (PACER) system is a decentralized system of electronic judicial-records databases. Under federal law, the government is permitted to charge people fees to access records on PACER. Today, those fees are set at 10 cents per page (with a maximum fee of $3.00 per record) and $2.40 per audio file.

In April 2016, three nonprofit organizations - National Veterans Legal Services Program, National Consumer Law Center, and Alliance for Justice - filed a class action complaint in the U.S. District Court for the District of Columbia, alleging that today's PACER fees violate federal law because the fees charged exceed the government's costs of providing federal court documents on PACER.

In March 2018, the district court agreed (https://law.justia.com/cases/federal/district-courts/district-of-columbia/dcdce/1:2016cv00745/178502/105/), ruling that PACER fees violate the E-Government Act of 2002. The government appealed to the U.S. Court of Appeals for the Federal Circuit.

Amici briefs filed in support of the plaintiffs generally agree that the government's practice of charging fees that exceed the costs of providing access to these court documents is at odds with the text and history of the E-Government Act, as well as contrary to Congress' intent in passing that federal law. Under 28 U.S.C. ยง 1913 the government is allowed to charge fees "only to the extent necessary" "to reimburse expenses incurred in providing [PACER records-access] services."

Plaintiffs and their supporters elaborate not only that PACER fees today are higher than the marginal cost of disseminating the information, but also that some of these fees are used to fund projects or services other than providing document access on PACER, and federal law prohibits imposition of PACER fees to fund them.

They further argue that excessively high PACER fees impose a serious financial barrier to members of the public who wish to access court records, and these fees thereby create a system in which rich and poor do not have equal access to important government documents. Recognizing both the inequity of such a system and the importance of public access to court documents, they note that Congress wrote the relevant statutory language to include the phrase limiting fees "to the extent necessary" thus intending to make this information freely available to the greatest extent possible.

Makes sense to me.

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This page contains a single entry from the blog posted on February 12, 2019 1:16 PM.

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