Justice Dept. Spent $4 Million on PACER This Year, Activist Reports
By Stephanie Woodrow | December 7, 2009 7:14 pm
Carl Malamud (Joichi Ito)

Carl Malamud (Joichi Ito)

As part of his campaign to make federal court records more readily available and searchable on the Internet, open-government activist Carl Malamud has released information about the costs of the PACER system to the Department of Justice.

The Justice Department has spent about $4 million this year on the Public Access to Court Electronic Records system, better known as PACER, according to Malamud, Wired.com reports. Malamud of Public.Resource.org told the Web news publication that  he obtained this information from a Freedom of Information Act request regarding how much money the department spends on public information.

While most PACER users pay 8 cents per page or a maximum of $2.40 per document, DOJ has an annual contract with PACER. According to the documents obtained by Malamud, the most recent contracts have been for:

  • $800,000 for fiscal 2003.
  • More than $2 million for fiscal 2004.
  • More than $2.6 million for fiscal 2005.
  • More than $3 million for fiscal 2006.
  • More than $3.8 million for fiscal 2007.
  • More than $3.7 million for fiscal 2008.
  • More than $4.1 million for fiscal 2009.
  • More than $3.9 million in fiscal 2010.

Malamud for years has been on a crusade to make public and increase accessibility to public domain information from government agencies. To date he has been successful at getting the Securities and Exchange Commission to put its EDGAR database online.

Almost four years ago, Malamud took up a new effort, increasing public accessibility to PACER. For people interested in accessing court documents, PACER is the first, and in many cases, the last step.

Using the PACER Web site requires registering with a credit card, which Malamud says is restricting access to public records. “They’re public if you have a credit card,” Malamud told us in October, noting that the requirement prevents some people, especially low-income people, from accessing these public records. “I’m just not convinced that anyone who wants it has sufficient access.” Another drawback is the registration requirement, including name and contact information, which is “intimidating” according to Malamud.

PACER records used to be accessible at 17 public libraries nationwide — until Malamud encouraged people to download as many documents as they could and send them to him for posting on his Web site, which search engines can access. In response, Aaron Swartz downloaded about 20 percent of the PACER database to turn over to Malamud’s Web site.

This prompted the Government Printing Office, which had arranged for the library access, and the Administrative Office of the U.S. Courts to shut down the service “pending an evaluation.” Soon after a FBI investigation was launched.  Malamud maintains that he did nothing illegal.

Malamud’s solution to the perceived problems with PACER is to make all court records accessible and more easily searchable. “There are three reasons we do this: democracy, innovation and efficiency,” Malamud said.

As PACER is currently configured,  a user cannot search by a word or phrase, only by a party name or case number. Malamud points out that if  all court documents were searchable in search engines, such as Google, people would be able to search more broadly — using a phrase or name that isn’t part of the official name of the case, for example.

There is a concern though about possible unintended consequences of such a searchable database. Judges are aware that court documents, unless sealed, are public and accessible through a number of venues — including PACER and Lexis — but having legal documents searchable in popular, publicly accessible search engines  could prompt judges to redact more information.

“Judges may change the way they do things and that might be a good thing,” Malamud said, adding that judges should be making their decisions on redacting information based on the fact that information is public and should not qualify how public the information is.

As part of his long-running quest to make public court documents more accessible to the general public, Malamud is critical of the amount of money — coming from both taxpayers and individual customers — is spent on PACER. According to Dick Carelli, spokesman for the AOUSC, PACER’s revenue in fiscal year 2009 was $89 million. “They’re making a big profit on this and they’re not supposed to.” If PACER documents were all public, it could eventually save the government $1 billion, Wired.com reports.

In addition, DOJ pays legal publisher West Publishing for online access to Supreme Court opinions, tax courts records, appeals court decisions and bankruptcy court, according to Wired.com. The department paid the company $5 million in 2005.

AOUSC defends the PACER system and its annual revenue. Carelli said most PACER users do not pay for the service, as PACER waives the fees for anyone who spends less than $10 annually.

CORRECTION: A previous version of the story said Malamud estimated PACER’s annual revenue to be $220 million. This version also clarifies that the PACER pilot program was shut down by both entities, not just the Government Printing Office. Also, the program was shut down in response to actions by Swartz, not by Malamud’s call for action.

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