Above The Law: US Contemplates Joining 21st Century As Free PACER Bill Advances Out Of Judiciary Committee

ATL report

The Open Courts Act of 2021, which advanced out of the Senate Judiciary Committee today without noted dissent, was probably always going to become law. The constituency to charge ten cents a page to look at a static PDF on PACER is pretty narrow, after all.


But the appalling bad faith shown by the federal judiciary in fighting to keep its slush fund alive probably didn’t help.

Last year, when a similar bill was making its way through the House, judiciary watchdog group Fix the Court published a leaked memo of laughable talking points the Administrative Office of the US Courts supplied to judges, detailing the chaos that would be unleashed if Americans were permitted to access federal filings for free.

Among the predicted horrors:

• This bill would force the Judiciary to create a completely unnecessary new electronic filing and public access document system, estimated to cost at least $2 billion.

• To pay for it, litigants in civil and bankruptcy cases will have to pay double, triple, or even more in additional fees — just to file their cases in court.

• These new costs would break the financial backs of many litigants, essentially closing the courthouse doors and denying them access to justice.


Leave aside for the moment why they would have to build a new site from scratch, as opposed to simply modifying PACER to take down the paywall. In what universe does building a website from the ground up cost a billion dollars, much less two?

US District Judges Audrey Fleissig and Richard Story even appeared before the House to warn of dire consequences of just letting people see federal filings for nothing.

“Our case management and public access systems can never be free because they require over $100 million per year just to operate,” Fleissig argued. “That money must come from somewhere.”

One hundred million dollars? Is Bill Gates their system administrator? How could it possibly cost that much?

And also, if the DOJ alone spends upwards of $100 million every year on PACER fees, where’s the rest of the money going?

Not for nothing, but the Free Law Project has been running a mirror site on less than $300,000 a year in donations — and you should download that browser extension which automatically uploads anything you buy from PACER to CourtListener today!

As drafted, the federal judiciary would still collect fees from “any person other than a government agency that accrues such fees for access in an amount of $25,000 or greater in any quarter.” But it would be proscribed from using funds collected other than “for purposes of this Act,” probably a reference to a Federal Circuit decision from 2020 affirming that PACER fees are excessive and the overage is being used for purposes other than maintaining the site.

The House failed to pass a similar bill last year, but this year there appears to be momentum, thanks in no small part to the judiciary’s hyperbolic representations, which only served to shine a light on this boondoggle. The bill had bipartisan sponsorship in the Senate Judiciary Committee, including Senators Rob Portman, Ron Wyden, Josh Hawley, and Dick Durbin, and will likely be popular in the House.

Well played, Your Honors.

Free PACER? Bill to end fees for online court records advances in Senate