Is access to public records meaningful only if free?

Access to public records is in the news. Whether it’s via a presidential memorandum or legislation working its way through the South Dakota Legislature, the trend is to create a presumption that records are open. Yet even before those actions, an individual in California took making federal court records publicly available to a new level.

In October 2007, the federal judicial system launched a trial program at 16 libraries around the country granting unlimited free access to PACER (Public Access to Electronic Court Records), the federal judiciary’s database of case and docket information from the its appellate, district and bankruptcy courts. Usually, PACER requires registration and charges 8 cents a page, a fee that “applies whether or not pages are printed, viewed, or downloaded.” Having used PACER quite a bit, it is more than a tad clunky and outdated.

Carl Malamud, the head of a non-profit group that believes public records should be freely available, saw this as an opportunity. He urged volunteers to visit the libraries, download large numbers of court documents and provide them to him so they could be put on the web. Aaron Swartz went above and beyond the call. Swartz downloaded nearly 20 million pages of text, an estimated 20 percent of the entire database. The government shut down the trial program last September “pending an evaluation” and later announced that the security of PACER had been “compromised.”

Most appellate courts make copies of their opinions available online for free. This includes the South Dakota Supreme Court, the U.S. Supreme Court and the U.S. 8th Circuit Court of Appeals, the federal appellate court that handles cases out of South Dakota. That is not true for all the briefs or other pleadings filed with the appellate courts or for trial court filings. There simply is no public computerized access to such filings in South Dakota and, generally, the only way they can be obtained in the federal system is through PACER. Moreover, even in PACER your search is limited and does not include searching all or a certain number of the documents for a particular word or phrase.

There are, of course, some issues with unfettered public access to these filings because they often contain financial or other personal information. Those are not insurmountable problems. For example, the federal courts in South Dakota now use electronic filing and have a standing order specifying what personal identifying information should not be included in or should be removed from documents filed with it. Likewise, in an effort to maximize accessibility to court records, the South Dakota Supreme Court adopted rules several years ago that, among other things, say that court records are open to the public but specify what personal or financial information cannot be made public.

As a result, the issue with access to court records isn’t one of resistance. Particularly at the local level, it’s finding — and funding — a way to provide access to thousands and thousands of pages when and the technology continuously changes. After all, it wasn’t all that many years ago that microfilm was the technology of choice. And ultimately there will need to be a decision on whether the cost of online or other digital access should be borne by the court system (spelled “all taxpayers”) or by user fees.

The information revolution is unthinkable without democracy, and true democracy is unimaginable without freedom of information.

Kofi Annan, June 23, 1997

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