Documents Legal, Laws, and Regs


The costs associated with PACER has been an issue for some time. The late Aaron Swartz once downloaded 20% of the database (a figure later corrected to less than 1%) before the government shut down the server. Aaron did so because he believe that we should have access to the documents on PACER, and I agree with him, completely. I just wish he’d stayed around long enough to see me actually agree with him (something that wasn’t all that common in the distant past).

PACER is an access system. The costs are associated with accessing the documents, not having the documents. The documents are public domain. Trying to work our way around PACER is not a good exercise and isn’t really necessary either, because the documents don’t originate with PACER: people own these documents before they get tossed into PACER. The key is how to connect these documents to the world at large, without having to go broke.

The RECAP The Law is one effort to create an open PACER system. It uses a browser plug-in to download court documents whenever you purchase them on PACER. Unfortunately, though, there’s no simple way to provide court documents once already downloaded. Or to provide documents if you don’t want to use a cumbersome browser plug-in.

The Internet Archives is attempting to collect PACER documents, like it tries to collect other documents, but again, there’s no easy interface to upload documents.

The reality is that for all that PACER has an old fashioned interface, it is a simple, easy to use tool that functions well considering how often it is accessed. Most people who have great ideas about providing a free PACER either underestimate exactly how much they’re biting off, or they start out with good intentions, but didn’t get the support needed once people moved beyond the initial “We must do this!” stage. Typically, this occurs 1-3 months after an Event, whatever the Event is.

I find it unlikely there will ever be a single “Open PACER”, and frankly, one isn’t needed. We have a thing called a “search engine”. All we need to do is put our court documents online as PDFs, provide the proper label, and then let those who need the documents find us using sophisticated search tools. Simple, problem solved.

Well, except for the issue of getting the documents in the first place.

It has cost me well over $1600.00, and counting, to access the court documents for my book on the court battle between Feld Entertainment (owner of Ringling Brothers circus) and various animal welfare groups. This, just to access documents for two court cases, and a couple of small peripheral actions. One of the cases, the original ASPCA et al vs. Feld Entertainment, Inc., recently renamed to AWI et al vs Feld Entertainment, Inc, has over 621 separate document entries (and counting), many of which have 5, 10, or more attachments. That’s number of documents, not pages. The number of pages must be in the tens of thousands, or at least it seems so after so many months spent looking through all of them.

And not every document is even accessible by the public via PACER. If transcripts for status meetings didn’t appear now and again as attachments to other filings, I would have missed out on some of the interesting tidbits associated with the case. Then there are the background cases, most of which are either too old to have their documents in PACER, or have been sealed by the court (something that I really don’t approve of if the case is of general public interest).

Not long ago, PACER, supposedly in an effort to lessen the financial burden on those of us who are not lawyers (and can’t therefore pass on costs to our clients), changed its fee system. Judicial decisions are freely available, without charge. The cost per page has been increased to ten cents, but it’s capped at $3.00 if the document goes over thirty pages. Except for transcripts. If you want all pages of a transcript, well, be prepared to fork over the money.

If your PACER access comes to less than $15.00 a month, you’re off without a charge. Of course, I can blow past $15.00 in less than 20 minutes.

The system is an improvement, especially for the cases covered in my book, where the lawyers would toss in book length attachments on too regular a basis. It’s still painfully expensive.

The thing is, all of the documents in PACER are out there, typically stashed in some lawyer’s laptop somewhere. It’s perfectly legal for lawyers, legal assistants, law students, anyone with access to court documents to just post them online. Post them online, link them from a web page somewhere, and then let the search engines do the rest of the job. If the document is not sealed by the court, it is public domain, end of story (regardless of legal attempts to prove copyright on legal briefs).

My costs would have more closely resembled $3,000 if it weren’t for a couple of web sites that did just that. One has since taken down their documents, but Born Free USA still lists the court transcripts and documents for the initial ASPCA et al vs. Feld court case. I found them using Google, with a simple search. My costs would have been much less if some of the other groups associated with the court case just placed their court documents online. It wouldn’t have prejudiced the case. It wouldn’t ‘count against them’, in the courts. It would ensure that information is freely available the next time someone publishes an interestingly worded PR release.

That’s all we need. We don’t need a fancy new system. We don’t need a browser plug-in. All we need to do is put the court documents we have access to, online, and let the web take care of the rest.