Is Open Access Equal Access? PACER User Fees and Public Access to Court Information

Abstract

Our country has a long history of striving for openness and transparency in government processes. In 1978, the United States Supreme Court held, “It is clear that the courts of this country recognize a general right to insect and copy public records and documents, including judicial records and documents.” Long before America’s high court recognized this common law principle, court records were historically accessible for inspection by lawyers, journalists, land title companies, credit agencies, academics, and members of the general public. These individuals were also permitted to take notes as a part of their right to inspect court documents. Having free access to copies (i.e. reproductions), however, was a completely different matter. Unlike the right of free inspection, the right of free copies did not exist, and copies of court records could be extremely expensive to citizens seeking the information. For example, in 1853, a copy of a court document was ten cents a page, a steep price for the mid-nineteenth century. One could even make an argument that the right to simply inspect court documents was not actually “free” for many, due to the associated travel costs of physically going to the courthouse in an era before mass transportation and the internet.