Federal court records:PACER/"RECAP"

Carolyn Elefant, a practicing solo attorney in Washington, D.C., yesterday posted that "PACER, the federal government's system for Public Access to Court Electronic Records, was originally intended to make court filings more accessible to litigants and the public at large. Now, roughly a decade later, Carl Malamud (who Robert Ambrogi, back in February, said believes that all primary legal materials produced by the government should be readily available to the public) and others argue that PACER actually deters access by holding public documents hostage behind an 8-cents-a-page fee wall."

Ms. Elefant's posting continues by saying one more assertive approach "is to turn PACER on its head, which is exactly what The Center for Information Technology Policy at Princeton University is doing with its RECAP the Law project. 'RECAP' -- PACER spelled backwards -- is short for recapture, as in recapturing the law." RECAP, an extension tool for Firefox browsers, automatically "donates" documents purchased from PACER accounts into a public repository hosted by that archive… PACER users, therefore, are building a new, free and open repository of public court records.

Is that even legal? Michael Arrington at Tech Crunch, a weblog "dedicated to obsessively profiling and reviewing new Internet products and companies and existing companies that are making an impact (commercial and/or cultural) on the new web space," recently addressed that question. "The PACER site says 'The information gathered from the PACER system is a matter of public record and may be reproduced without permission.' There is no copyright on these documents. But "PACER also says 'Any attempt to collect data from PACER in a manner which avoids billing is strictly prohibited and may result in criminal prosecution or civil action.' Technically, though, the data isn't being collected from PACER by RECAP users, although they are using the site as a search engine of sorts."

Elefant writes, "RECAP users are paying to collect data; it's just that the data is then being shared with an online repository. In fact, RECAP isn't all that different from commercial services that harvest documents from PACER and then resell them -- except that RECAP provides the documents free. But it seems to me that if the court were going to shut RECAP down, it would have to shut down commercial document harvesters as well."

Be that all of that as it may, RECAP's website yesterday posted that "law professors, librarians, and think tankers praised RECAP."

Two years ago, the Government Printing Office and U.S. Courts' Administrative Office put together what was suppose to be a 3-year pilot project making the PACER system available to the public at no cost through a set of 16 federal depository libraries. But the project was put on hold, pending an investigation into possible security breaches. That's apparently where we still are today. (See articles in July 2009 AALL Spectrum for more information)

Enter RECAP.

While not taking a position on the RECAP project per se, one of the American Association of Law Libraries' long-held public policy positions has been "adequate annual funding to the Administrative Office of the United States Courts for no-fee public access to PACER." (See "Statement to The Obama-Biden Transition Team: Public Policy Positions of The American Association of Law Libraries, December 23, 2008" )

AALL, among others, including Joseph Lieberman, Chair of the Committee on Homeland Security & Government Affairs of the U.S. Senate, have raised concerns that not enough effort has been being made to make PACER records freely available to the public as required by the E-Government Act of 2002. Senator Lieberman, last January, sent a letter to Judge Lee H. Rosenthal, Chair of the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, questioning how the federal courts have complied with the transparency and privacy requirements of the E-Government Act.

Government-run or private, "open and accessible federal court documents through the PACER" represents one of the top ten most-wanted government documents according to the March 2009, "Show Us The Data" report by the Center for Democracy & Technology and OpenTheGovernment organization.