Nonprofits Claim PACER Fees Are Too High

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     WASHINGTON (CN) – The Administrative Office of the U.S. Courts ignored congressional instructions by overcharging for electronic access to federal case files and information, a class claims in court.
     The class, headed by three Washington nonprofits, claims the office has used revenue from fees it charges users of the electronic access system to fund projects unrelated to information access, such as courtroom maintenance and flat screen TVs for jurors.
     The Public Access to Court Electronic Records system, commonly known as PACER, allows users to search through, download and print files from federal courts across the country for 10 cents a page.
     In addition to overcharging for the files, the Administrative Office of the U.S. Courts (AO) has tried to limit the number of journalists, pro se litigants and nonprofits who receive fee waivers. It has also stopped those who do get waivers from transmitting the information, and hired collection lawyers to go after people who don”t pay their fees, according to the lawsuit.
     In one example, the PACER Service Center sued a single mother of two, claiming she owed more than $30,000 in PACER fees. She admitted printing no more than $80 worth of pages, and said she could not have owned enough paper and ink to print the 380,000 pages needed to rack up such a bill, the class claims in the 15-page lawsuit filed Thursday.
     “The problem here is that first of all, it”s unlawful to charge people for access to these records and then use that money for completely different purposes where the fees are not tied to the actual cost of running the system,” said Deepak Gupta, the Washington attorney who represents the class. “The second problem is that it”s bad policy. It”s sort of a regressive tax on information, if you will.”
     When PACER was launched online in 1998, the AO set the price to access records at 7 cents per page, though the class claims the agency never justified that price.
     One year before setting the 7-cent price, the office issued a report suggesting revenues from PACER could support a new e-filing system it was planning, according to the complaint.
     Congress didn”t think this arrangement ideal, and in the E-Government Act of 2002 it gave the agency in charge of PACER authority to impose “reasonable fees” for access “only to the extent necessary,” the lawsuit states.
     But the AO responded by raising the cost per page to 8 cents three years later, without citing any legal authority to do so, the class claims.
     “To justify this increase, the AO did not point to any growing costs of providing access to records through PACER,” the nonprofits say. “It relied instead on the fact that the judiciary”s information-technology fund – the account into which PACER fees and other funds (including appropriations) are deposited … could be used to pay the costs of technology-related expenses like [the e-filing system].”
     By the end of 2006, this information-technology fund was $150 million in the black, with more than one-fifth of that coming from PACER fees.
     Rather than using the surplus to cut back on PACER fees, the agency poured it into “courtroom technology allotments for installation, cyclical replacement of equipment, and infrastructure maintenance,” the class claims, quoting a 2010 letter from the AO to senators on the Homeland Security and Government Affairs Committee.
     “Instead of complying with the law, the AO has used excess PACER fees to cover the costs of unrelated projects – ranging from audio systems to flat screens for jurors – at the expense of public access,” the April 21 lawsuit states.
     In 2009, then-Sen. Joseph Lieberman of Connecticut, who wrote the E-Government Act, told the Senate Appropriations Committee he was worried about the office”s interpretation that it could use PACER fees to fund other programs.
     That didn”t stop the AO from raising rates again in 2012, to 10 cents a page. While it claimed it would spend the new revenue on public access programs, the class points to a budget summary from 2014 that found most of the money went to courtroom technology.
     “Since the 2012 fee increase, the AO has continued to collect large amounts in PACER fees and to use these fees to fund activities beyond providing access to records,” the lawsuit states. “In 2014, for example, the judiciary collected more than $145 million in fees, much of which was earmarked for other purposes, such as courtroom technology, websites for jurors, and bankruptcy notification systems.”
     The three named plaintiffs in the complaint — the National Veterans Services Program, the National Consumer Law Center and the Alliance for Justice — all say they paid fees into the PACER system over the past six years.
     The class the nonprofits represent could be as large as 2 million members, Gupta said. The lawsuit asks for judgment declaring the PACER fees excessive, and damages for any fees found to be more than the amount allowed by law.
     “The case is not about what it should cost to operate PACER,” Gupta said. “Whatever it costs to operate PACER, the problem here is that they”re charging far more than it costs them to operate PACER.”
     The AO did not respond to a phone message requesting comment on the lawsuit.
     A similar complaint was filed in December, alleging an error in PACER”s system causes overbilling. ‘