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August 2010

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This article is in the news archives --- for current news go to the Third Branch News.

 

A Look at Electronic Public Access in the Federal Courts


Bankruptcy Judge J. Rich Leonard was appointed to the U.S. Bankruptcy Court for the Eastern District of North Carolina in 1992 and served as chief judge of the court from 1999 to 2006. He is an original member of the Judiciary’s Electronic Public Access Working Group, and chair of the Next Generation CM/ECF Additional Stakeholder Functional Requirements Group.

Bankruptcy Judge J. Rich Leonard (E.D. N.C.)

Bankruptcy Judge J. Rich Leonard (E.D. N.C.)

You’ve been part of the Electronic Public Access Program since its beginning more than 20 years ago. Can you tell us a little about how you became involved and how you’ve seen the program evolve? How did the PACER service change the way staff and attorneys work?

We had watched the frustration over the years of lawyers trying to get information from paper records in the courthouse. In part it was a proximity issue: if you’re not in the same city, it meant traveling to a court. Once you got to the court, there was only one copy of the file, so if it was with the judge or in the courtroom, or couldn’t immediately be found—then you had to wait your turn. Once you looked at it and marked what you wanted, maybe the court had time to copy it then, maybe it didn’t. And when the court copied it, it was $.50 a page and prohibitively expensive to get much documentation out of a case file.

About 20 years ago, we began using primitive automated docketing systems in our courts and saw how useful it was to have access to case dockets unleashed from the paper file. We set up a system where people could dial directly into our databases—in our pre-Internet world you literally dialed into our computers—and usage exploded.

With the implementation of the Case Management/Electronic Case Files (CM/ECF) system over the past decade, it has continued to grow. Today, PACER provides access to more than 500 million documents.

PACER has been one of the great success stories of the federal Judiciary, with over one million registered users. There’s just no other court system, in other countries or in any of the state systems, that comes close to providing the level of case information and public access that PACER does.

Recently, an assessment was conducted of the Electronic Public Access program including a survey of PACERS users. Why was the assessment undertaken?

The Judiciary began a year-long assessment of the Electronic Public Access program in 2009, not because we thought anything was wrong, but as good management. The goal of the assessment was to identify potential enhancements to existing services and new electronic access services for the public. PACER is a service that had been out there for a long time and, while we’ve done internal assessments for years, we thought it was time to take a more formal look.

Interviews and focus groups were held with various users, including representatives from the courts, the media, litigants, attorneys, researchers, and bulk data collectors. Several user surveys were conducted.

I’ve seen a lot of these studies over the years looking at various court projects— and this was just first-rate in terms of the way the study was conducted and all the rich data it produced for us about what PACER is, and what it does, and how it’s seen by a variety of people.

Generally, what did the assessment find? Were any of the findings/responses a surprise?

The most reassuring thing we found was a remarkably high level of satisfaction. Close to 80 percent overall said they were satisfied or very satisfied with the services that PACER provides. We gathered lots of narrative comments about how users couldn’t do business without PACER: they couldn’t practice law in a remote location, they couldn’t run their business, and they just couldn’t provide services without it. That was great.

National implementation of the digital audio initiative will, quite literally, bring the courtroom to a user’s desktop or MP3 player

They also told us PACER’s navigation was a little dated and clunky. Web browsers have come a long way since we designed PACER and we hadn’t really kept up. And they told us our search capacity was way too limited.

Surprisingly, cost ranked way down. Most people thought that they paid a fair price for what they got.

Do you have any changes in mind, based on the assessment?

The Electronic Public Access Working Group is reviewing the assessment findings and looking at recommendations.

Some things we’ve already done. We took what was called the old Party/Case Index, where you could find a case anywhere in the country, and updated it a great deal. It’s now the Case Locator and much more vigorous with all sorts of search criteria built in. We’ve also refreshed our website so it’s much more contemporary.

Will the Electronic Public Access assessment influence the next Generation of CM/ECF? If so, how?

The assessment produced a great deal of information about what various user groups like and don’t like about our services. Because we knew Next Generation CM/ECF was coming, we were able to load up the questionnaire with a set of questions about the Case Management/Electronic Case Files system too. About 45 percent of PACER users also use CM/ECF. We collected a ton of data about our case management system and how filers see it. I’m chair of the additional stakeholders group that’s going out and talking to all these outside groups, and this information is an excellent reference point. It is also critical because PACER is, in essence, our public front-end to CM/ECF. So changes to CM/ECF will be required to implement some of the key findings from the assessment.

What did you learn about PACER users? Do different categories of users have widely different needs or uses for PACER?

We know people use it very differently. We know some people use it to follow a case. On the other end, we have these huge data aggregators who search our entire database every night to pull out various pieces of information that they then re-package and market. We have some groups, such as trustees, who contract with these services to use PACER to do case management, which involves looking at virtually every file every day to see what’s happened and if it is relevant to that particular trustee. So yes, we found that lots of people use it in lots of ways.

Academics use the availability of our database to do research all over the country. They are the most critical of PACER, in part because they would like us to collect data that the courts don’t currently collect. For example, they would like demographic data about who is involved in certain kinds of litigation in this country. Currently, the courts don’t ask you your gender, or your race, or your age when you file a lawsuit, because no one has yet made the substantive case for why the court needs to know that information. So we don’t ask it. But it frustrates academics; they can’t get into our records and do the sort of demographic trend-lines of who’s involved in various pieces of litigation.

How are Electronic Public Access fees set and revenue used?

The fees are authorized by Congress and set by the Judicial Conference. The fee revenue is used exclusively to enhance public access to the courts, including court websites and courtroom technology. It takes an enormous amount of bandwidth to provide public access on a secure network. The hardware costs of putting servers in all the individual courts, and software development and maintenance costs are also substantial.

There are services we don’t charge for. You can download any document in the court with the knowledge that it can never cost more than $2.40 regardless of length. If you didn’t bill more than $10 a year, it was free. Now we’ve gone to $10 a quarter. So if your bill doesn’t add up to $10 a quarter, it’s free—and that’s about 75 percent of our user base. Since 2005, opinions have been available free of charge.

We made our exemption policy transparent with respect to circumstances under which a court may provide court data to researchers and others without a fee.

Are there any plans to respond to, or engage PACER’s critics?

There is a group of people who take the position that this is public data and it ought to be free and that, essentially, Congress ought to underwrite the expense of providing all of this data free of charge to anybody who wants it. Congress has thus far followed a different path, concluding that reasonable user fees should fund electronic public access rather than general taxpayer funds. That’s what we’ve done and we’ve built a very vigorous program while being very prudent about fees.

What’s the next step for Electronic Public Access? Will it continue to expand? If so, how?

Public access is growing. For example, we are about to embark on a pilot with the Government Printing Office to make opinions available via FDSys. National implementation of the digital audio initiative will, quite literally, bring the courtroom to a user’s desktop or MP3 player. This pilot program included audio files of hearings associated with the major automaker bankruptcies and proved particularly popular with the litigants, interested parties, the media, and the public.

I think as a logical offshoot of this Next Generation CM/ECF Project, PACER will change. The way data goes into CM/ECF is the way it comes out in PACER. As we move toward a more data-driven CM/ECF, I think there are going to be all sorts of search capacities in PACER that aren’t limited to a document-by-document look, where you can begin to look for all sorts of underlying data in the federal court database. The Case Locator will continue to get better. I think there will be much more powerful search capacities across the federal court database than we’ve ever had before.

I expect we’re 3–5 years out from having a new fully implemented system. I anticipate there’ll be modules coming out well before that, but it will be that long before we have an entirely new architecture, and platform. We’ll continue to make those incremental updates.