From "the Third
Branch<http://www.uscourts.gov/news/TheThirdBranch/10-08-01/A_Look_at_Electr...>,"
a publication of the courts. 3 items stick out:

* PACER's administrators surveyed current users in 2009, from which they are
making upgrading PACER. Apparently they did not survey people who do not
user PACER, but would if they were to lower access barriers.

* Will they respond to PACER's critics, i.e., that public data should be
free? Answer: doesn't look like it.

* Next steps? A pilot program with GPO to make opinions available via FDSys
and national implementation of a digital audio initiative.

Daniel

Daniel Schuman
Director, Advisory Committee on Transparency
Policy Counsel | The Sunlight Foundation
o: 202-742-1520 x 273 | c: 202-713-5795
Twitter: danielschuman

  AUGUST 2010

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 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.
 [image: 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 ...

read more »

Harlan Yu has a great response to the Third Branch's PACER article.
http://www.freedom-to-tinker.com/blog/harlanyu/assessing-pacers-acces....
A snippet (my emphasis):

*But the key question is not only whether current users are satisfied with
the service but also whether PACER is reaching its entire audience of
potential users.* Are there artificial obstacles preventing potential PACER
users—who admittedly would be difficult to poll—from using the service? The
satisfaction statistic may be fine at face value, assuming that a
representative sample of users were polled, but it could be misleading if
it’s being used to gauge the overall success of PACER as a public access
system.

One indicator of obstacles may be another statistic cited by Judge Leonard:
“about 45% of PACER users also use CM/ECF,” the Courts’ electronic case
management and filing system. To put it another way, *nearly half of all
PACER users are currently attorneys who practice federal law....

It may just be that those surveyed—primarily lawyers—simply pass the cost of
using PACER down to their clients and never bear the cost themselves. For
the rest of PACER users who don’t have that luxury, the high cost of access
can completely rule out certain kinds of legal research, or cause users to
significantly ration and monitor their usage (as is the
case<http://legalresearchplus.com/2009/08/28/pacer-spending-survey/>
even
in the vast majority of our nation’s law libraries), or wholly deter users
from ever using the service.*

Daniel

Daniel Schuman
Director, Advisory Committee on Transparency
Policy Counsel | The Sunlight Foundation
o: 202-742-1520 x 273 | c: 202-713-5795
Twitter: danielschuman

Assessing PACER's Access Barriers

By Harlan Yu - Posted on August 17th, 2010 at 3:02 pm

The U.S. Courts recently conducted a year-long assessment of their
Electronic Public Access program which included a survey of PACER users.
While the results of the assessment haven’t been formally published, the
Third Branch Newsletter has an interview with Bankruptcy Judge J. Rich
Leonard that discusses a few high-level findings of the survey. Judge
Leonard has been heavily involved in shaping the evolution of PACER since
its inception twenty years ago and continues to lead today.

The survey covered a wide range of PACER users—“the courts, the media,
litigants, attorneys, researchers, and bulk data collectors”—and Judge
Leonard claims they found “a remarkably high level of satisfaction”: around
80% of those surveyed were “satisfied” or “very satisfied” with the service.

If we compare public access before we had PACER to where we are now, there
is clearly much success to celebrate. But the key question is not only
whether current users are satisfied with the service but also whether PACER
is reaching its entire audience of potential users. Are there artificial
obstacles preventing potential PACER users—who admittedly would be difficult
to poll—from using the service? The satisfaction statistic may be fine at
face value, assuming that a representative sample of users were polled, but
it could be misleading if it’s being used to gauge the overall success of
PACER as a public access system.

One indicator of obstacles may be another statistic cited by Judge Leonard:
“about 45% of PACER users also use CM/ECF,” the Courts’ electronic case
management and filing system. To put it another way, nearly half of all
PACER users are currently attorneys who practice federal law.

That number seems inordinately high to me and suggests that significant
barriers to public access may exist. In particular, account registration
requires all users to submit a valid credit card for billing (or
alternatively a valid home address to receive log-in credentials and billing
statements by mail.) Even if users’ credit cards are never charged, this
registration hurdle may already turn away many potential PACER users at the
door.

The other barrier is obviously the cost itself. With a few exceptions, users
are forced to pay a fee for each document they download, at a metered rate
of eight-cents per page. Judge Leonard asserts that “surprisingly, cost
ranked way down” in the survey and that “most people thought they paid a
fair price for what they got.”

But this doesn’t necessarily imply that cost isn’t a major impediment to
access. It may just be that those surveyed—primarily lawyers—simply pass the
cost of using PACER down to their clients and never bear the cost
themselves. For the rest of PACER users who don’t have that luxury, the high
cost of access can completely rule out certain kinds of legal research, or
cause users to significantly ration and monitor their usage (as is the
case even in the vast majority of our nation’s law libraries), or wholly
deter users from ever using the service.

Judge Leonard rightly recognizes that it’s Congress that has authorized the
collection of user fees, rather than using general taxpayer money, to fund
the electronic public access program. But I wish the Courts would at least
acknowledge that moving away from a fee-based model, to a system funded by
general appropriations, would strengthen our judicial process and get us
closer to securing each citizen’s right to equal protection under the law.

Rather than downplaying the barriers to public access, the Courts should
work with Congress to establish a way forward to support a public access
system that is truly open. They should study and report on the extent to
which Congress already funds PACER indirectly, through Executive and
Legislative branch PACER fee payments to the Judiciary, and re-appropriate
those funds directly. If there is a funding shortfall, and I assume there
will be, they should study the various options for closing that gap, such as
additional direct appropriations or a slight increase in certain filing
fees.

With our other two branches of government making great strides in openness
and transparency with the help of technology, the Courts similarly needs to
transition away from a one-size-fits-all approach to information
dissemination. Public access to the courts will be fundamentally transformed
by a vigorous culture of civic innovation around federal court documents,
and this will only happen if the Courts confront today’s access barriers
head-on and break them down.

(Thanks to Daniel Schuman for pointing me to the original article.)

On Mon, Aug 16, 2010 at 10:28 AM, Daniel Schuman <

are making upgrading PACER. Apparently they did not survey people who do not
user PACER, but would if they were to lower access barriers.
free? Answer: doesn't look like it.
FDSys and national implementation of a digital audio initiative.

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.
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?
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.
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.
(CM/ECF) system over the past decade, it has continued to grow. Today, PACER
provides access to more than 500 million documents.
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.
program including a survey of PACERS users. Why was the assessment
undertaken?
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 ...

read more »