Freedom of Information Act or Freedom to Pay for Information Act?
When researching cases for the project, court documents are the jackpot of source files. I always feel a tiny bit of excitement when I am able to find a free indictment or plea document online. However, I think my excitement stems from the sad truth that court records, for the most part, are often quite difficult to acquire, either due to outdated and unorganized databases or required payments for searches and downloads. Whether I am searching for a federal case on PACER or for a state case on a district website, there are often many obstacles I must face in order to collect the records I need. This has made me think about how difficult it really is to access needed source documents, and it also made me wonder whether we should even be required to pay for court documents at all.
In 1996, President Johnson signed into law the Freedom of Information Act (FOIA) which basically protects any person’s right to request access to federal records or information. Though there are some exceptions to this, such as court information concerning juveniles or mental health commitment, court records generally fall in the realm of information that is available to the public. So why does accessing most court documents come with a hefty fee?
Since most of the cases we add to our database are of federal jurisdiction, I will begin by discussing the issues and complications with accessing federal records. The tPP team often looks to PACER, or Public Access to Court Electronic Records, to collect court documents; however, only one or two members of our team have access to the site because of membership costs. PACER holds more than 300 million documents from over 90 district courts and 13 appellate circuits, which is basically a goldmine to an over-excited researcher – but you have to pay $30 for the search, plus $0.10 per page per document delivered electronically, for up to 5 documents (30-page cap applies) (Hughes; PACER). Calling the program the Public Access to Court Electronic Records is a little misleading because the public does not have the ability to access the documents as they wish, with those who cannot afford it being unfairly disadvantaged.
In a list compiled by Ali Jarmanning of Boston University, I was able to view the various multitude of court and district websites containing court records for each state in the U.S. By doing this, I was able to get an idea of just how many states require a fee to search, access, or download court cases. There are many state court cases that can be accessed for free, such as those in Arizona, Connecticut, and New Mexico; however, each of these differs in the number of cases or courts that are available, the amount of information they provide, and the documents they allow users to view. For example, the Superior Court of Arizona in Maricopa County provides case information but does not provide any court documents (See example below).
There are also states in which some court cases and districts are accessible for free, and others are not. In California, various areas have different court sites, but more than five of these courts require around $1 per page. In Kansas, the district courts charge $1.50 per search, even if the search comes up empty, but the Supreme Court and Court of Appeals records are free. In addition, there are states in which documents and information are not accessible unless a fee is paid. In Alabama, it costs $10 per name or case. In Colorado, it costs $7 if you want to conduct a statewide search ($2 if you only want to search in Denver; $5 if you want to search everywhere but Denver; and $7 for a combined search), even if you come up with nothing. Furthermore, the site does not even provide online access to documents, only basic information.
For researchers, like the tPP team, who rely heavily on court documents as a source of information, we can end up paying hundreds of dollars per year in related fees. Considering tPP doesn’t have a source of profit, we, for the most part, end up paying out of pocket for PACER and court fees to perform our research – if we didn’t, we would not be able to access any of these documents. Since the FOIA states that “any person has a right, enforceable in court, to obtain access to federal agency records, except to the extent that such records (or portions of them) are protected from public disclosure,” I am led to ask the question: why are we spending hundreds of dollars on documents that we have a legal right to access?
Browdie, B. (2016, October 14). PACER fees for US court documents are facing a legal challenge of their own [News Outlet]. Retrieved October 31, 2019, from Quartz website: https://qz.com/800076/the-cost-of-electronic-access-to-us-court-filings-is-facing-a-major-legal-test-of-its-own/
Court Records and Proceedings: What is Public and Why? (2017, April 18). Retrieved October 30, 2019, from Connor Reporting website: https://connorreporting.com/court-records-proceedings-public/
Criminal Court Case Information – Case History [Government]. (n.d.). Retrieved October 30, 2019, from The Judicial Branch of Arizona Maricopa County website: http://www.superiorcourt.maricopa.gov/docket/CriminalCourtCases/caseInfo.asp?caseNumber=CR2010-142511
Hughes, S. (2019, March 20). The Federal Courts Are Running An Online Scam [News Outlet]. Retrieved October 30, 2019, from POLITICO Magazine website:
PACER – Frequently Asked Questions [Administrative Office of the U.S. Courts]. (n.d.). Retrieved October 30, 2019, from PACER website: https://www.pacer.gov/psc/faq.html