On PACER and FDSys

The Administrative Office of the US Courts issued a press release last week announcing that a “New Pilot Project Will Enhance Public Access to Federal Court Opinions.” According to the statement, select federal appellate and district courts will make their published opinions available on FDSys, as “FDSys can provide the public with a robust search engine that can search common threads across opinions and courts.” FDSys is run by the Government Printing Office (GPO), which issued a similar statement.

Let me start by saying I think this is a good thing. PACER has a lot of limitations, and moving opinions into a better search engine that is free to use and search is quite helpful. I like the idea of putting the bulk of government legal material (cases, codes, memos, etc.) into one database. It helps that the database will have the imprimatur of government on it, which will quiet the concerns about authentication that always pop up in these discussions.

Part of the reason that we need a move like this is because PACER access isn’t really free. In their press release, the AOC trots out the oft-quoted assertion that “Free access to opinions in all federal courts is currently available via the judiciary’s Public Access to Court Electronic Records service (PACER).” While this is technically true, it’s a problematic statement. To search PACER, you must create an account. PACER charges you to return search results. So, unless you know the exact docket number, you are going to pay for results. If you have to pay to find the opinion that you can download for free, it’s not free.

However, if you know the case name and the jurisdiction that issued the case, you can go to their CM/ECF system and run a report on “written opinions” that is free. From there, you can then click on the opinion and download it free of charge.

The CM/ECF system is technically part of PACER, but it’s not a central database: it runs separately for each court. So, you can run a report for one jurisdiction and get all the cases there, then download the written opinion for free, but you must know exactly what you’re looking for. If you don’t know the jurisdiction, you must search PACER (and pay).

There is also the fact that not all opinions are available for free: only those marked for publication by the authoring judge. This is explained in the press release from 2005 that announced the availability of free opinions via PACER:

“Written opinions have been defined by the Judicial Conference as “any document issued by a judge or judges of the court sitting in that capacity, that sets forth a reasoned explanation for a court’s decision.” The responsibility for determining which documents meet this definition rests with the authoring judge.”

This means that it’s up to the district court judge who writes the opinion whether it should be available for free. Moving all of the opinions into FDSys fixes the problem of search limitations and paywalls in PACER, but it doesn’t guarantee that every judicial opinion of import will find its way into the system. I’m not sure that users would even be aware of this limitation when they are using FDSys.

I was a little surprised that the pilot is is limited to 12 courts. If all of the information is coming directly from PACER, why not include it all? The release mentions that “the Judicial Conference approved expansion of the pilot to include up to 30 additional courts.” I’m hoping that they are scrubbing the data up a little, standardizing it, and maybe even adding a little metadata. That could take some time and would add a lot of value.

I think it’s also worth pointing out that the opinions going into FDSys are slip opinions, not the official reporter versions of the opinions. The slips are also what you find in PACER. Litigants generally do not cite to slip opinions once they have been published by the official reporter (which is a private company, for those of you new to this topic). This is an issue that attorneys may be aware of, but I don’t think the lay public understands.

I am heartened to see the AOC taking an interest in enhancing access to opinions online. While we’re at it, here’s a short list of other steps they can take to provide meaningful access to government work product from the courts.

Stop charging to search PACER.

The issue of charging for PACER access is a lengthy, ongoing debate (see Shultze and Lambert). I think that everyone can agree, however, that at a minimum, the system should not charge to perform a search. This is silly and outmoded. If they took this one step, they could legitimately state that certain opinions are available free of charge through PACER.

Last year the government announced that ” the Judicial Conference of the United States approved an adjustment to the Electronic Public Access Fee Schedule so that users are not billed unless they accrue charges of more than $10 of PACER usage in a quarterly billing cycle, in effect quadrupling the amount of data available without charge. Previously, users were not billed until their accounts total at least $10 in a one-year period. ”

I think this signals that they want to keep the charges reasonable–eliminating fees for search would help.

Provide an archive of slip opinions on FDSys

If the GPO wants to make FDSys a useful tool to conduct legal research, it should include a backfile, or archive, of federal court opinions. They must be stored at least individually by the courts. GPO should make an effort to collect and house these.

Provide official, citeable opinions on FDSys

The federal courts should require, as a provision of their publishing contracts with Thomson Reuters and LexisNexis, an archive copy of all published decisions (with official cites and internal page number) that they can include in the FDSys repository.

People, stop laughing and listen to me for a minute. How does the federal government not have the power to bargain for this? If the courts did not publish decisions, what would Wexis sell? They depend on the government. They get slip opinions from them free of charge, make occasional edits, and then resell them to both the government and American attorneys for enormous profits.

For the record, I don’t think there’s anything wrong with private publishers obtaining the opinions, adding value through organizational and editorial enhancements (headnotes, Shepard’s, etc). The publishers undoubtedly add value before they resell their services to the public. I argue that the government should own, or at least possess, the final, official copy of its own work.

It’s been done before. According to Peter Martin,

“Washington State has, for example, secured rights to and possession of data for case reports reaching back to the Washington territorial reports under a 2005 amendment to its official report contract. Office of Reporter of Decisions, State of Washington, Publishing Services Contract, PCH-2000-128, Amendment 3 (Apr. 22, 2005 (on file with author). The result is a free site with a state case law collection based on the printed official reports reaching back to 1854 (the first case in 1 Wash. Terr.). See Municipal Research & Services Ctr. of Wash., http://www.mrsc.org (follow “Legal Resources” hyperlink, then follow “Court Decisions” hyperlink) (last visited Jan. 14, 2007).”

If Washington can get this in their contracts, why not the feds?

Adopt a universal citation system to make opinions cite-able and archive ready from creation

If the courts would agree to use a universal citation format, they could apply the citation instantly when the release the slip opinions, add paragraph numbers in, publish, and voila!– citeable case. Put that in the FDSys archive, and you’ve got something of real value to the citizens. Mary Alice Baisch, former Director of Government Relations at AALL and new Assistant Public Printer and Superintendent of Documents at the GPO has commented here about the AALL’s role as a leader vendor neutral citation — hopefully now that she’s at the GPO, she’ll work with her team to carry through with this commitment and make vendor neutral citations part of the FDSys reality.