Washington eBulletin – October 2019

A Look Ahead

Congress Considers Legislation to Improve Access to Legal Information 

Members of Congress returned to their states and districts for a two-week recess after a particularly busy three weeks in session. Before lawmakers left Washington, the House and Senate passed a continuing resolution (H.R. 4378) to fund the federal government through November 21, avoiding a government shutdown that would have occurred on September 30. The Senate also passed several fiscal year (FY) 2020 appropriations bills, including a legislative branch appropriations bill (S. 2581) to fund the Government Publishing Office at its requested level of $117 million and the Library of Congress at $735.8 million, $39.7 million above the FY 2019 enacted level.

Just before the Congressional break, the House Judiciary Committee’s Subcommittee on the Courts held a hearing titled, “The Federal Judiciary in the 21st Century: Ensuring the Public’s Right of Access to the Courts.” The hearing focused on sealed court filings, audio and visual access to court proceedings, and the Public Access to Court Electronic Records (PACER) system. The Judicial Conference of the United States was represented by Audrey Fleissig, United States District Judge for the Eastern District of Missouri and chair of the Judicial Conference Committee on Court Administration and Case Management, and Judge Richard Story, United States District Judge for the Northern District of Georgia and a member of the Judicial Conference’s Committee on the Judicial Branch.

In her testimony, Judge Fleissig raised concerns about proposed legislative changes to PACER’s fee structure. She stated that while the Judiciary is committed to openness and public access, proposed legislation would place an unfair burden on litigants by exponentially increasing filing fees to support the case management and public access systems which cost more than $100 million to operate.

Seamus Hughes, Deputy Director of the Program on Extremism at George Washington University and author of a recent piece in Politico Magazine titled “The Federal Courts Are Running An Online Scam,” testified about problems with PACER, including usability barriers for research and journalism. Hughes offered examples that illustrated both the day-to-day frustrations of users and the broader policy and technical issues that hamper the system and offered solutions including making PACER free, setting a uniform system for documents filed in the system, and requiring documents be text-searchable.

AALL appreciates the Judiciary’s recent actions to establish an Electronic Public Access Public User Group and increase the quarterly fee waiver for PACER users from $15.00 to $30.00. We also believe that more needs to be done to increase access to court records because PACER has not kept up with its promise to provide the public with affordable electronic access to court information. Today, PACER is cumbersome, inefficient, and outdated. The system erects barriers to equitable access to information and inhibits access to justice. AALL submitted a statement for the record expressing the Association’s support for the Electronic Court Records Reform Act (H.R. 1164/S. 2064) that would modernize and provide free access to PACER.

AALL is also tracking several other bills related to access to legal and government information, including the Open and Responsive Government Act of 2019 (S. 2220) to improve the Freedom of Information Act; the OLC Sunlight Act to provide greater access to Office of Legal Counsel (OLC) opinions; the Access to Congressionally Mandated Reports Act (H.R. 736/S. 195) to direct the Government Publishing Office to make reports available for public access and bulk download; and the Grant Reporting Efficiency and Agreements Transparency Act of 2019 (H.R. 150/S. 1829) to require the use of open data and increase transparency of federal grant recipient reporting. The latter two bills have already passed the House and await action in the Senate.

1. Some members of Congress and technology experts have questioned PACER’s operating costs given the average costs associated with modern data storage and record retrieval systems. One recent estimate calculated the total yearly expenses for storing and serving PACER’s data at just over $200,000. Issues related to the costs of PACER and CM/ECF are being considered in National Veterans Legal Services Program et al v. United States of America, in which the United States Court of Appeals for the Federal Circuit is considering whether the government is violating the E-Government Act of 2002 by charging fees to access court documents that exceed the marginal cost of providing documents on PACER.

AALL in the States

UELMA Updates

On September 17, Law Librarians of New England (LLNE) Immediate Past President Catherine Biondo testified in support of the Uniform Electronic Legal Material Act (UELMA) in Massachusetts before the Joint Committee on the Judiciary. Read more on the LLNE Blog.

In addition, AALL President Michelle Cosby sent a letter to the Uniform Law Commission reiterating the Association’s support for UELMA.

Roundup and Review

On October 1, the United States Court of Appeals for the D.C. Circuit upheld in part the Federal Communications Commission’s (FCC) Restoring Internet Freedom Order that repealed the net neutrality protections under the 2015 Open Internet Order in the case Mozilla v. FCC. The court also ruled that the FCC cannot prevent states from enacting their own net neutrality laws or other broadband regulations. The decision underscores the need for the Senate to pass the Save the Internet Act (S. 682), which enacts critical net neutrality protections. The Save the Internet Act would ensure law libraries can continue to meet their crucial missions to provide users with equitable access to up-to-date online legal information.