ARCHIVED: Response to Questions from Senator John Warner

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RESPONSE FROM ROBERT L. OAKLEY,
WASHINGTON AFFAIRS REPRESENTATIVE FOR
THE AMERICAN ASSOCIATION OF LAW LIBRARIES,

TO QUESTION FOR THE HEARING RECORD FROM
SENATOR JOHN WARNER, CHAIR, SENATE COMMITTEE
ON RULES AND ADMINISTRATION

You and your organization have a special interest in the publications of the Federal Courts. The bill is very deferential to the courts, yet at the same time it is very clear in expressing our intent to have the courts participating fully. What counsel would you give the committee as we continue our discussion with the courts, and what counsel would you give the Superintendent of Government Publications Access Programs so that we can be assured that the courts eagerly and willingly make their publications available for permanent public access?

The American Association of Law Libraries (AALL) and our more than 5,200 members nationwide are committed to the enactment of S. 2288 this year. While our members and the patrons we serve are heavy daily users of government information from Congress, executive branch agencies, and the Federal courts, we do indeed have a special interest in improving public access to publications from the Judiciary, including court opinions.

We are very pleased that the intent of Congress in this historic reform of Title 44 includes the full participation of the courts. In the Chapter 19 provisions regarding the Federal Publications Access Programs, the definition of "agency" in Sec. 1902 explicitly includes components of the judicial branch of government, and Sec. 1906b states that:

(a)(1) All Government publications, regardless of form or format, of the judicial branch, including court opinions, shall be made available at no charge to the Federal publications access libraries.

(a)(2) The Director of the Administrative Office of the United States Courts shall use whatever measures are necessary to ensure the timely dissemination of Government publications of judicial branch agencies and the courts to the public and to expand and improve the maintenance of permanent public access to Government publications of judicial branch agencies and the courts under this chapter.

S. 2288 demonstrates your commitment, Senator Warner, and that of Senator Ford, to the democratic ideals of an informed citizenry to allow the public's participation in the activities of their government. Access to the Government's publications, including its body of law, is essential to our democratic society. As we approach the 21st century, it is time to leave behind the current model of very limited public access to the publications of the Federal courts through the Federal Depository Library Program (FDLP). Instead, it is a propitious moment in the history of public access to government information to propel the Judiciary towards a new model of broad public access by embracing electronic technologies to democratize American jurisprudence for all citizens on an equal basis.

I would like to frame my response to your very thorough question regarding the full participation of the courts in the reform of Title 44, as provided for in S. 2288, by focusing on three areas: first, a very short history of the publishing of Federal court opinions that leads us to today's undemocratic model of very limited public access to official court opinions through the FDLP; second, the opportunity to take advantage of electronic technologies and the Internet to produce and disseminate Federal court opinions in an efficient, cost-effective and official manner; and third, the roles of the new Superintendent of Government Publications Access Programs and the Director of the Administrative Office of the United States Courts that, while requiring a new degree of cooperation, can successfully fulfill the production, procurement and public dissemination mandates of S. 2288.

First, a short background on the publication of Federal court opinions.

Over the past decade, I have participated in many panel discussions on "Who Owns the Law." Because of the decentralization of the Federal court system throughout the country, the production of court opinions, with the exception of those of the Supreme Court, was decentralized in its earliest days. Federal court decisions usually were compiled by the court reporter, most often in a fairly unsystematic way. In 1876, John B. West initiated a private reporting system for the state and Federal courts that was comprehensive and accurate. West Publishing Company quickly became--and remains today--the dominant producer of court opinions through its National Reporter System. In addition to the Supreme Court, the Federal court system includes the thirteen United States Courts of Appeals and 94 United States District Courts. Unlike the opinions of the Supreme Court which are published through the Government Printing Office (GPO), there is no official reporter published by the government for the decisions of these lower courts. However, these opinions have been compiled into bound series produced by West Publishing Company and they are available electronically through two fee-based electronic research services, WESTLAW and LEXIS.

Whereas the printing of documents from legislative and executive branch agencies became centralized in 1852 when Congress created the position of Superintendent of Public Printing, the law did not extend to the decentralized Federal court system. Today, the only Federal court opinions that are publicly accessible at no fee through the Federal Depository Library Program are the slip opinions of the Supreme Court and the bound United States Reports. In 1939 the Joint Committee on Printing issued the Judiciary a waiver allowing it to contract for the printing of slip opinions. Regrettably, this printing waiver led to an ad hoc waiver from the requirements to disseminate these slip opinions for no-fee public access through the FDLP.

AALL is pleased that the Committee is encouraging the Federal Courts to recognize that, while they have been granted waivers from the Joint Committee on Printing for the production of print court opinions because of their unique nature and the decentralization of the Federal court system, these waivers were not intended to absolve the courts from their dissemination responsibilities under the current Title 44. Under the provisions of S. 2288, the current waivers for the production of publications from the courts will be repealed within 120 days. However, the courts--or the Administrative Office of the United States Courts on their behalf--can seek a delegation of authority to continue to produce publications outside of the GPO. S. 2288 makes it explicitly clear, however, that this waiver is not intended to relieve the Judiciary from the responsibility to disseminate these publications through the depository library program.

Second, new opportunities for the Judiciary to use electronic technologies to create and disseminate official Federal court opinions equitably to the American public.

The Federal courts can and should fully comply with the provisions of S. 2288, and we believe that this can be accomplished in an efficient and cost-effective manner by taking full advantage of the opportunities to create and disseminate court opinions to the public electronically through the Internet. Several Federal courts have created homepages; unfortunately, few of these at this time include access to the court's actual decisions but rather provide the user with a link to the government's PACER (Public Access to Court Electronic Records) system at an online fee of $0.60 per minute. We would encourage the Committee to recommend that the Judiciary provide no-fee access to the PACER system to those Federal Access Publications Libraries who select such access. The Department of Commerce's STAT-USA provides a model on how an agency, in this case, one that is required by law to be self-sustaining, fulfills its Chapter 19 obligations of current Title 44 by providing access to its electronic publications. We believe that PACER also should be made available to the public through depository libraries.

AALL has encouraged the courts to proceed toward the electronic dissemination of Federal court opinions through the Internet in an organized and systematic manner. In fact, beginning in 1994, several prominent law schools joined forces to provide the courts with a model on how to provide no-fee Internet access to the opinions of the U.S. Courts of Appeals at very low cost These law schools--Villanova University School of Law, Georgetown University Law Center, Emory University School of Law, Chicago-Kent College of Law, Pace University and Touru Law Center, Washburn University School of Law, and Washington University School of Law--each assumed responsibility to provide daily updates to searchable databases of the slip opinions of one or more of the U.S Courts of Appeals at no fee to the public through the Internet. Recognizing the need for permanent public access to these electronic opinions, these law centers also voluntarily archive the opinions.

The purpose behind this voluntary project was to demonstrate to the courts that the use of electronic communications networks can facilitate the timely and low cost dissemination of court opinions. The project was not intended to relieve the courts of their own dissemination responsibilities, but rather to encourage them to follow the model of electronic public dissemination. In addition, Cornell Legal Information Institute and Villanova Center for Information Law and Policy offer enhanced access and services to the decisions of the Supreme Court in electronic formats. As unofficial, public no-fee access points to a wealth of Federal court information, these law centers collect on a daily basis, organize, provide search software, and archive the decisions of the Federal courts voluntarily for the public good.

Of the Federal courts that have developed their own homepages (please note attached list), those opinions are not considered "official"; most of these sites link users to the fee-based PACER system to locate the opinions (please note attachment regarding PACER); and if they do include even a limited number of opinions, few sites provide the necessary search capabilities. On the other hand, AALL applauds the U.S. Court of Appeals for the 5th Circuit for creating a homepage that provides direct no-fee public access to a searchable database of its opinions dating back to 1991. We are also pleased to note that the U.S. Court of Appeals for the Armed Forces has just developed a homepage as a pilot project and "a public service....intended for use by the public for viewing and retrieving information," including opinions. To illustrate the public's use and need for electronic access to court opinions, to date more than 35,8000 individuals have visited the homepage of the 8th Circuit Court that is hosted by the Washington University School of Law.

There are several drawbacks to the law school projects, however. While these databases are heavily used on a daily basis, the U.S. Courts of Appeals slip opinions available through the law school sites are not considered "official" and may not be cited as such. Further, in 1996 as part of the Congressionally-mandated GPO study on the transition to a more electronic FDLP, AALL recommended to the Administrative Office of the United States Courts that at the very minimum, if the law center project were to continue, formal agreements recognizing this partnership would be necessary. To date, no agreements between the courts and the law centers have even been discussed. If the Administrative Office of the U.S. Courts determines that the law school project is at this time the preferred method of electronic dissemination of the opinions of the U.S. Courts of Appeals, then formal contractual agreements with the law centers and the Superintendent of Government Publications Access Programs as the third party and "trustee," should be developed expeditiously.

AALL believes that the Federal courts themselves, or the Administrative Office of the United States Courts on their behalf, should disseminate electronic versions of the opinions of the lower Federal courts or make them available through the GPO Access system which already provides no-fee public access to the Project Hermes collection of Supreme Court opinions (1992 - current) and the FLITE database of historic Supreme Court opinions (1937-1975). The Judicial Conference of the United States, which serves as "the principal policy making body concerned with the administration of the United States Courts," appears to concur with the need for the American public to have electronic access to the opinions of the Federal courts. In their Report of the Committee on Automation and Technology's Subcommittee on Policy and Programs Concerning Standard Electronic Citations (1997), the Subcommittee noted that,

 

The primary assumption underlying the proposal is that judicial opinions are public documents and that it is in the best interest of the judiciary and the public for such opinions to be made available to judicial officers, litigants, and the public as quickly and inexpensively as possible. While official case reports (United States Reports, for example) have historically seldom been available to the public on a timely basis, the subcommittee sees no reason why this should be so if the opinions were posted electronically. Creation and maintenance of a central database of federal opinions would appear to be a matter undoubtedly within the authority of the judicial conference.

S. 2288 gives the Judiciary the authority and incentive to create a centrally-maintained, authoritative and publicly-accessible database of Federal court opinions that will answer the question, once and for all, of "Who Owns the Law?" Past history has demonstrated that allowing a private legal publisher to be the sole producer of Federal court opinions results in barriers to the public's access to our nation's body of law. In 1983, the U.S. Department of Justice signed an exclusive contract with West Publishing Company to maintain the agency's electronic JURIS database of case law and digests. JURIS includes a mix of non-copyrightable, public domain government information with proprietary information created by West Publishing Company. The JURIS database exemplifies the loss of government information to the public when an agency enters into an exclusive contract with a private entity without including in the licensing agreement provisions for public access mandated under Title 44. To this day, parts of theJURIS database, including its public domain content, is still controlled by West Publishing Company and public access, even under the Freedom of Information Act (FOIA), is prohibited. We are very pleased that S. 2288 would prevent such an exclusive arrangement in the future by ensuring that the Superintendent of Government Publications Access Programs will certify "the terms and conditions, if any, for accessing Government publications required by the Superintendent of Government Publications Access Programs for its program" (Section 1904(b)(2)).

Third, a new spirit of cooperation between the Superintendent of Government Publications Access Programs and the Director of the Administrative Office of the United States Courts will be necessary to fulfill the production, procurement and public dissemination mandates of S. 2288.

S. 2288 establishes the office of the new Superintendent of Government Publications Access Programs with the authority to "the ensure the timely dissemination of Government publications to the public and to expand and improve the maintenance of permanent public access to Government publications" from all three branches of government, including the Judiciary. This authority will require improved communication and a new spirit of cooperation between the Superintendent and the Director of the Administrative Office of the United States Courts.

In addition to the inclusion of judicial branch publications into the new Federal Publications Access Program, the provisions of Title IV also include working together: to negotiate terms and conditions for any on-line, fee-based services; to comply with requirements for the cataloging of government publications and the locator service; to develop and establish uniform policies and procedures, particularly with regard to ensuring authenticity; and to develop guidelines for the permanent public access and use of judicial branch publications. In addition, the Director of the Administrative Office of the United States Courts will oversee judicial branch compliance with these provisions, and in the event of noncompliance, will consult with the Superintendent of Government Publications to determine how to correct the noncompliance.

These and other provisions articulate new roles and responsibilities both for the Superintendent and the Director that will require a new degree of coordination and a new spirit of cooperation. To the critically important goals of S. 2288--that public access to government information is fundamental to fostering an informed citizenry to promote meaningful participation in our democracy--might I add that every American citizen should have access to the law of the land. With such a noble purpose as its underlying principle, AALL is confidant that the Judiciary will participate fully and eagerly to improve public access to their publications, including court opinions, and that the Director and the Superintendent will work cooperatively and successfully to meet the important provisions of this landmark legislation.

August 21, 1998