Sunlight is said to be the best disinfectant. Electric light is the most efficient policeman. It has always been my view that when the people of this Nation watch their Government in action, they come to better understand how our governing institutions work and equip themselves to hold those institutions accountable for their deeds. If there are flaws in our governing institutions, including our courts, we hide them only at our own peril.
Justice Louis D. Brandeis, Other People's Money, 1914
The decisions of the United States federal courts are the property of the people -- without copyright. More than that, they are the laws of the United States. Access to these decisions should be viewed as fundamental to the idea of an open society and a nation of laws.
But the federal judiciary keeps district court decisions, pleadings, bankruptcy filings, etc. locked up in a system called PACER. It costs eight cents to download a page. More to the point PACER features a worst-case interface that makes research and even basic legal research practically impossible, Carl Malamud, one of the key participants in the free-Pacer movement, told me in a phone interview. Malamud, who publishes government documents he thinks should be publicly available at Resource.org, counts the Web posting of SEC filings and Congressional bills among his accomplishments.
But now the judiciary is under heavy pressure to open up Pacer. In February, after a New York Times article detailing Malamud's attempts to download Pacer during a free trial in select libraries (he managed to get about 20 gigabytes of data before the free trial was quickly shut down), Sen. Joseph Liberman (I-Conn.) sent a letter noting that, thanks to Pacer's fees, the judiciary is sitting on $150 million cash and suggesting that Pacer violates the eGovernment law. Lieberman pointed out that the 2002 law freed the judiciary from having to charge for information. The current standard is that they "may, to the extent necessary" charge.
Seven years after the passage of the E-Government Act, it appears that little has been done to make these records freely available - with PACER charging a higher rate than 2002. Furthermore, the funds generated by these fees are still well higher than the cost of dissemination, as the Judiciary Information Technology Fund had a surplus of approximately
$150 million in FY2006.
But there's a bigger issue than money - privacy. Malamud did an extensive audit of the data he was able to collect and found that many district courts utterly failed to redact extremely sensitive personal data from court documents.
"We found 1,700 cases with egregious privacy violations . I sent redacted and unredacted versions to the courts, with a copy to the Times. ... There were egregious violations. In Massachusetts, there was a 54-page document in a medical malpractice suit that included names, addresses, Social Security numbers, phone numbers of all 350 of the doctor's patients.
This despite a legal requirement that government agencies redact personally identifying information. Most galling is the idea that the documents should remain behind Pacer to protect this personal data. "I explicitly said that sunlight is the best disinfectant," Malamud says, quoting Justice Louis D. Brandeis. "It's only when we made the data public that we started to solve these privacy problems."
Malamud has no doubt Pacer will see the light of day by the end of the year. But it's not clear if the judiciary will go along. In its response to Liberman Judge Lee Rosenthal and James Duff were combative on the issue of fees, denying that Pacer has a $150 million surplus and saying that the 8-cent charge is far more reasonable than the 50 cents it costs at courthouses.
When it happens, the U.S. courts will find it's all for the best.
[The policy of locking up court documents] hurts the judiciary, hurts the profession, hurts law students and academics. It's set back our legal system several years.