Open Courts Act of 2020

Floor Speech

Date: Dec. 8, 2020
Location: Washington, DC


Mrs. ROBY. Mr. Speaker, I would like to include in the Record a letter from the Judicial Conference of the United States voicing their opposition and concerns to H.R. 8235, the Open Courts Act of 2020. Judicial Conference of the United States, Washington, DC, December 7, 2020. Hon. Steny Hoyer, Majority Leader, House of Representatives, Washington, DC.

Dear Mr. Leader: I write on behalf of the Judicial Conference of the United States, the policy-making body of the federal Judiciary, to express our continued strong opposition to H.R. 8235, the Open Courts Act of 2020 (``OCA''), which is scheduled for floor action on Tuesday, December 8, 2020. This legislation--which will take years to implement--rushes forward without appropriate and necessary assurances and provisions regarding the budget for such an enormous undertaking. The bill as drafted will have devastating budgetary and operational impact on the Judiciary and our ability to serve the public.

We very much appreciate that you, along with House Judiciary Courts Subcommittee Chairman Hank Johnson, intervened last week after my helpful conversation with Chairman Johnson to prompt more dialogue between the branches. The many hours of staff conversations, through the weekend, that followed your encouragement led to some significant textual changes to the bill. We are grateful for those efforts which addressed some of our concerns with the previous version of the bill. Very serious concerns remain, however, and further dialogue is much needed.

The fact is that our preliminary estimates for the cost of this bill is orders of magnitude higher than the bill's proponents have presumed--currently we are $2 billion apart-- and CBO's hurried and preliminary estimates of the cost of developing and implementing a new electronic filing and public access system, in our view, vastly underestimates the cost of the bill. Critically, some of the bill's revenue streams are also untested, difficult to administer and/or impossible to estimate reliably in advance.

If our cost estimates are correct--or even marginally closer to correct than the bill's proponents'--there is no scenario in which the revenue generated by the bill could be sufficient to cover those costs. This will force the Judiciary to slash funding for staff and other critical operations. Moreover, the Judiciary's backbone case management system, and therefore the Judiciary itself, could grind to a halt. In anticipation of a funding shortfall, the bill now provides for an emergency pause in the transition to the new system required by the bill. This might be preferable to the forced accommodation of significant unbudgeted costs, but such a pause in the middle of a massive transition of systems would result in its own substantial disruptions.

Better information on the costs of this bill and the revenues it would generate is needed to ensure that the Judiciary and public users of this system avoid devastating consequences. We believe we will have a much clearer picture of cost projections in early Spring 2021, at the conclusion of the first phase of a study for a replacement case management system to be performed by GSA.

The Judiciary has other major concerns with the bill, including issues of technological feasibility, security, and governance, but the threat of devastating budget consequences for the Third Branch simply cannot be overemphasized.

The Judiciary is committed to working collaboratively with the next Congress to improve our systems for filing, storing, managing, and making available to the public all relevant court records. We recognize and share Congress' bipartisan interest in a modern, effective, fair and successfully funded system. The current version of the Open Courts Act, however, is not the way to accomplish those goals. We look forward to working through these shared goals with you in the future. Sincerely, James C. Duff, Secretary.

Ms. JACKSON LEE. Mr. Speaker, as a senior member of the Judiciary, Committee, I rise in strong support of H.R. 8235, the ``Open Courts Act of 2020,'' which would centralize and modernize the federal judiciary's court records systems (called CM/ECF) and would eliminate the paywall (called PACER) that currently forces the public to pay to access these records.

The new system will provide a centralized, easily searchable site to file and read court records and monitor docket activity, and equally important, make all public court records on the site available free of charge.

Every year, the public pays the federal judiciary more than $100 million in fees so they can read the motions, briefs, orders, exhibits, calendar entries, and other court filings that make up the overwhelming majority of federal litigation and bankruptcy practice.

These fees are used to maintain and operate the judiciary's electronic court records systems (called ``case management and electronic court filing systems'' or ``CM/ECF'') that judges, court employees, and the parties before the court use to file documents, issue decisions, and generally manage proceedings.

Although many parties before the court pay a fee to initiate a proceeding or otherwise file a document (generally called ``filing fees''), these fees do not support the electronic courts records systems they rely on.

Instead, those systems are subsidized by the public.

The fees the public pays to view federal court records are officially called ``electronic public access'' or ``EPA'' fees.

More commonly, they are called ``PACER'' fees, after the paywall system the public must use to pay for and access those records.

The Public Access to Court Electronic Records (PACER) system charges users 10 cents per page to view, download, or search for public court records.

The per-document fee is capped at $3.00; audio files of court hearings, if they exist, cost $2,40.

Judicial opinions are free, as are the first $30 of charges per quarter.

As several retired judges have argued, ``openness serves a structural role in our republican system of self-government'' and that ``opening up judicial records by removing the PACER paywall would be consistent with the best traditions of judicial transparency.''

PACER functions as a paywall that the public must pass through to access the judiciary's electronic court records systems.

These systems are highly decentralized--every one of the 94 district courts, 13 courts of appeals, and 90 bankruptcy courts have their own CM/ECF system.

Until recently, for example, a user was required to have a separate username and password for every CM/ECF system--today, some, but not all, courts allow a user to have the same password and username.

Seamus Hughes, the Deputy Director of George Washington University's Program on Extremism, has spent years researching terrorism cases in the United States, Europe, and in the Middle East. As he researches individuals and entities charged with providing material support to foreign and domestic terrorist organizations.

As part of those investigations, he developed expertise in searching the federal court records system and in testimony last year, described the consequences of this set up:

Quite simply, it is not easy to access public court records on PACER. PACER provides access to federal criminal records and is organized by federal districts in each state . . . To use the system you need to apply for a PACER account, get a password, and know what district in each state you want to search. Each search requires the user to know what they are looking for and where. Even then the cost is not always tied to a result.

For example, if you are a terrorism researcher and want to review every case that charges material support to a terrorist organization, you would have to go to 94 different individual court websites and conduct a new and separate search on each website.

Mr. Speaker, in addition, some public court records, including trial exhibits and unsealed documents, are routinely unavailable because they are not posted on a court's CM/ECF system, and documents are difficult to find because there are no uniform tags or naming conventions.

Mr. Speaker, the Open Courts Act of 2020 addresses these problems and helps ensure that the public and free access to the American judicial system remains available.

Section 2(a) of the bill requires the Director of the Administrative Office of the United States Courts to, in coordination with the Administrator of General Services, consolidate all federal court records into one system within 2-3 years.

Section 3(a) requires the Director of the Administrative Office of the United States Courts to, in coordination with the Administrator of General Services, make all court records on the system established by section 2 freely available to the public.

Section 3(b) grants authority to the Judicial Conference to designate, after notice and comment, certain categories of records that will be subject to up to a 5-day delay before they are made publicly accessible.

Any such designation must be no broader than necessary and be based on a determination of a specific and substantial interest in restricting the public right of access to court records. Any designation expires after 3 years unless renewed via notice and comment.

Section 3(c) requires the Director of the Administrative Office of the United States Courts, in coordination with the Administrator of General Services, to ensure that the public can search for and access court records, similar to the requirements under Section 2 of this act.

Finally, section 3(d) establishes the dates when all PACER fees must be eliminated and court records are made freely available to the public within two years from enactment unless the Director of General Services certifies that an additional year is needed.

This is needed legislation and I support it.

I urge all Members to join me in voting for H.R. 8235, the ``Open Courts Act of 2020.''