Here was an unexpected announcement from the US 8th Circuit Court of Appeals, which is hearing an appeal in the Brady v. National Football League antitrust litigation:
The court has determined that public interest in the case and the demand for documents requires that all public documents in the case, including all pleadings and orders, be made available without charge through the court’s website. The pleadings and orders will remain available until the court completes all proceedings in the case.
Now you may wonder what the big deal is about a court making its own documents — which are in the public domain to begin with — available “free of charge.” Well as I can attest to, normally there’s a charge for obtaining all but a handful of court papers online. PACER, the records system used by all federal courts, charges 8 cents “per page” — an odd unit given that everything is now online — to view dockets and filings online (up to a maximum of $2.40 per item).
Trust me, it can add up quickly. Before today’s announcement, I was downloading Brady filings from PACER and making them available for free at the National Antitrust Hall of Fame. And even with the 8th Circuit’s decision, the district court’s filings remain by the federal judiciary’s pay-wall. The only documents that are always available for free are the actual opinions of the court explaining the disposition of a case.
There is no good cause for the government to charge for online access to public domain materials. Heck, I’ve received thousand-page responses to Freedom of Information Act requests from the Federal Trade Commission — hardly a bastion of transparency — without paying a cent. For that matter, the FTC offers free online access to just about all filings in its cases. The judiciary, however, has special permission from Congress to charge for its “public” records.
The fact that the 8th Circuit, acting on its own, decided to make all Brady filings available for free indicates that the pay-wall is unrelated to the judiciary’s financial or security needs; otherwise, why forego revenues in a case where demand is at its highest? The truth of the matter is, the pay-wall remains because of bureaucratic inertia, or lack thereof. There’s been little external pressure to change the current system, which has been in place since before the modern Internet took shape. We simply accept the “need” to pay for access to public court records.
There was one half-hearted attempt to open PACER access. In 2009 the Government Printing Office made free PACER access available at 17 government libraries. Unfortunately, when someone tried to download most of the database, the GPO quickly ended the project and called in the FBI to investigate the downloader. That seems to have dampened any further government effort to alter the status quo.
Naturally, there have been private initiatives to open up PACER, most notably RECAP, an extension for the Firefox web browser that takes documents individuals download from PACER and automatically backs them up to a free online archive. Of course, this depends on individual users paying for PACER access initially and using Firefox, which limits its reach.
But this shouldn’t be necessary. It’s bad enough the government’s antiquated copyright system keeps a vast sum of human knowledge out of the public domain. It adds insult to injury for the state — which confiscates trillions in private wealth annually — to then charge for access to information it freely acknowledges to be in the public domain. If it’s in the “public interest” to waive charges for a case involving a professional football lockout, it’s in that same interest to abolish the pay-wall altogether.
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Didn’t Kafka write entire novels about the frustration of trying to extract simple facts and legal information from a vast and uncaring imperial bureaucracy?
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