NATIONAL VETERANS LEGAL SERVICES PROGRAM et al v. UNITED STATES OF AMERICA

Filing 52

MOTION for Summary Judgment as to Liability by ALLIANCE FOR JUSTICE, NATIONAL CONSUMER LAW CENTER, NATIONAL VETERANS LEGAL SERVICES PROGRAM (Attachments: #1 Declaration Declaration of Jonathan Taylor, #2 Exhibit Exhibit A, #3 Exhibit Exhibit B, #4 Exhibit Exhibit C, #5 Exhibit Exhibit D, #6 Exhibit Exhibit E, #7 Exhibit Exhibit F, #8 Exhibit Exhibit G, #9 Exhibit Exhibit H, #10 Exhibit Exhibit I, #11 Exhibit Exhibit J, #12 Exhibit Exhibit K, #13 Exhibit Exhibit L, #14 Exhibit Exhibit M, #15 Declaration Declaration of Thomas Lee and Michael Lissner, #16 Statement of Facts Plaintiffs' Statement of Undisputed Material Facts)(Gupta, Deepak)

Case 1:16-cv-00745-ESH Document 52-10 Filed 08/28/17 Page 1 of 8

EXHIBIT I

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JUOHCHAL CONFERENCE Of THE UNHTED STATES
WASHINGTON, D.C. 20544
THE CHIEF JUSTICE
OF THE UNITED STATES
Presiding

fAMES C. DUFF
SeCTefary

March 26, 2009

Honorable Joseph I. Lieberman
Chairman
Committee on Homeland Security
and Governmental Affairs
United States Senate
Washington, D.C. 20510
Dear Mr. Chairman:
We are responding on behalf of the Judicial Conference and its Rules Committees to
your letter to Judge Lee H. Rosenthal dated February 27, 2009. Your letter raises two questions
about the Judiciary's compliance with the E-Government Act of2002: the first involves the
fees charged for Internet-based access to court records, to which Director Duff responds; and
the second relates to the protection of private information within these court records, to which
Judge Rosenthal responds. The Judiciary welcomes the opportunity to address these issues.
User Fees Necessary to Support PACER
You inquired whether the Judiciary's Public Access to Court Electronic Records
(PACER) system complies with a provision of the E-Government Act that contemplates
a fee structure in which electronic court information "is freely available to the greatest extent
possible." We assure you that the Judiciary is charging PACER fees only to the extent necessary.
As described below, many services and documents are provided to the public for free, and
charges that are imposed are the minimum possible only to recover costs. As such, we believe
we are meeting the E-Government Act's requirements to promote public access to federal court
documents while recognizing that such access cannot be entirely free of charge.
There are high costs to providing the PACER service. This fact raises an important
question of who should pay for the costs - taxpayers or users. Congress initially answered
the question in our 1991 appropriations act when it required that improved electronic access to
court information be funded through reasonable fees paid by the users of the information, and not
through taxes paid by the general public. That requirement is the basis for the current Electronic
Public Access (EPA) program, and for the fees charged for access to federal court documents
through the PACER system.

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Honorable Joseph I. Lieberman
Page 2
The PACER user population includes lawyers, pro se filers, government agencies,
trustees, bulk collectors, researchers, educational institutions, commercial enterprises, financial
institutions, the media, and the general public. The fees are the same for all users of the system.
The program does not, however, provide free access to every individual, law firm, or corporation
(most notably data resellers and credit reporting firms) that is interested in obtaining vast
amounts of court data at no cost.
As noted above, Congress mandated 18 years ago that the Judiciary charge user fees
for electronic access to court files as a way to pay for this service. Since that time, various
legislative directives have amended the mandate, mostly to expand the permissible use of the
fee revenue to pay for other services related to the electronic dissemination of court information,
such as the Case Management/Electronic Case Files (CM/ECF) system l and an Electronic
Bankruptcy Noticing (EBN) system? Your letter correctly notes that the E-Government Act
shifted emphasis by providing that fees "may," rather than "shall," be collected, and "only to
the extent necessary." It did not, however, alter Congress's policy that the EPA program recoup
the cost of services provided through a reasonable fee. Indeed, the Conference Report on the
Judiciary Appropriations Act of2004, adopted two years after the E-Government Act, included
the following statement: "[t]he Committee expects the fee for the Electronic Public Access
program to provide for Case Management/Electronic Case Files system enhancements and
operational costs."] Consistent with that directive, the Judicial Conference increased the EPA fee
by one cent per page accessed.
The Judiciary takes its responsibility to establish the EPA fee very seriously. Since well
before the E-Government Act, it has been the Judicial Conference's policy to set the electronic
public access fee to be commensurate with the costs of providing and enhancing services related
to public access. In fact, prior to the one-cent per-page increase in 2004, the Conference had a
history of lowering the fee. As a result, PACER is a very economical service:
•

The charge for accessing filings is just eight cents per page (as opposed to the
fees for using commercial services such as Westlaw or Lexis, which are much
more);

CMlECF, the primary source of electronic information on PACER, was developed and is maintained
with EPA fees. This system provides for electronic filing of all documents in all 94 district courts
and all 90 bankruptcy courts, and currently is being implemented in the courts of appeals.
2

The EBN system is funded in its entirety by EPA fee revenue. It provides access to bankruptcy case
information to parties listed in the case by eliminating the production and mailing of traditional paper
notices and associated postage costs, while speeding public service. Available options include
Internet e-mail and fax services, and Electronic Data Interchange for large volume notice recipients.
Over 20 million bankruptcy notices were transmitted through the EBN program in fiscal year 2008.
See H.R. Rpt. No. 108-401, 108th Cong., }'I Sess., at 614 (adopting the language ofH.R. Rpt.
No. 108-221, 108th Cong., }'I Sess., at 116).

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Honorable Joseph 1. Lieberman
Page 3
•

There is a $2.40 maximum charge for any single document, no matter its
length; and

•

At federal courthouses, public access terminals provide free PACER access to
view filings in that court, as well as economical printouts (priced at $.10 per
page).

In addition, contrary to the notion that little has been done to make court records freely
available, the Electronic Public Access (EPA) program does provide a significant amount of
federal court information to the public for free. For example, through PACER:
•

Free access to all judicial opinions is provided;

•

Parties to a court case receive a free copy of filings in the case;

•

If an individual account does not reach $10 annually (which translates into access to
at least 125 pages), no fee is charged at all- in 2008, there were over 145,000
accounts in this status; and

•

Approximately 20 percent of all PACER usage is performed by users who are exempt
from any charge, including indigents, academic researchers, CJA attorneys, andpro
bono attorneys.4

Nonetheless, the fact remains that the EPA program does require funding, and Congress
has never provided appropriations for its support. If the users, the largest of which are finance
and information management corporations, are not charged for the services they receive, the
Judiciary cannot maintain PACER or other public access facilities unless Congress annually
provides taxpayer-funded appropriations to support the program.
Additionally, a misconception about PACER revenues needs clarification. There is no
$150 million PACER surplus; the figure referenced in your correspondence was a FY 2006
balance of$146.6 million in the much larger Judiciary Information Technology Fund (JITF).
The JITF finances the IT requirements of the entire Judiciary and is comprised primarily of
"no-year" appropriated funds which are expected to be carried forward each year. While fee

4

In addition to these examples, the EPA program provides free access to court case information
through VCIS (Voice Case Information System), an automated voice response system that provides
a limited amount of bankruptcy case information directly from the court's database in response to
touch-tone telephone inquiries. The Judicial Conference also recently attempted to expand free
PACER access through a pilot project that provided PACER terminals in Federal Depository
Libraries. The purpose of the pilot was to provide access to individuals who would be unlikely to go
to the courthouse, have ready access to the Internet, or establish a PACER account. Unfortunately,
after only 11 months, the pilot had to be suspended pending an evaluation and an investigation of
potentially inappropriate use.

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Honorable Joseph I. Lieberman
Page 4
collections from the EPA program are also deposited into the JITF, they are used only to fund
electronic public access initiatives and account for only a small portion of its balance. 5
Finally, the Judiciary is making a serious effort to implement the requirements ofthe
E-Government Act. Section 205(d) directed the Judicial Conference to "explore the feasibility of
technology to post online dockets with links allowing all filings, decisions and rulings in each
case to be obtained from the docket sheet of that case." In reality, the Judiciary has done much
more than "explore" such technology - we have designed and now implemented in all courts a
system that provides nearly one million PACER users with access to over 250 million casejile
documents at a reasonable fee, andfrequently free ofany charge at all. The EPA program was
developed as an alternative to going to the courthouse during business hours and making copies
at the cost of 50 cents a page.
In contrast, very few state courts have electronic access systems, and none provides as
much information as PACER. Many state courts charge several dollars for a single records
search. We receive frequent inquiries from state court officials and court administrators from
other countries about PACER, which is viewed as an electronic public access model. Taxpayers,
who incur none of the expenses associated with PACER, and users of the system, who enjoy
rapid access to a vast amount of docket information, are well served by PACER. The PACER
system is an on-going success story and the Judiciary remains committed to providing a high
level of electronic public access to court information.
Private Information in Electronic Court Records
The Judicial Conference and its Rules Committees share your commitment to protecting
private information in court filings from public access. Over a decade ago, before electronic
filing was adopted in the federal district and bankruptcy courts and well before enactment of
the E-Government Act of 2002, the Conference began developing a policy to protect private
information in electronic case files while ensuring Internet-based public access to those files.
That policy became effective in September 2001. Changes to the Federal Appellate, Bankruptcy,
Civil, and Criminal Rules, largely incorporating the privacy policy and addressing other rules'
aspects of protecting personal identifiers and other public information from remote electronic
public access, became effective in December 2007, under the E-Government Act and pursuant
to the Rules Enabling Act process. 6
The Judicial Conference has continued to examine how the privacy policy and rules
are working in practice. Two Conference committees are reviewing the rules, the policy, and
their implementation. The Administrative Office of the United States Courts has also continued

The carryover JITF balances (including the portion attributable to EPA fee collections) have been
substantially reduced since FY 2006 in order to meet the Judiciary's IT requirements.
6

Fed. R. App. P. 25(a)(5); Fed. R. Bankr. P. 9037; Fed. R. Civ. P. 5.2; and Fed. R. Crim. P. 49.1.

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Honorable Joseph I. Lieberman
Page 5
to reinforce effective implementation. The Federal Judiciary has been in the forefront of
protecting privacy interests while ensuring public access to electronically filed information.
In late 1999, a few federal courts served as pilot projects to test electronic filing. In
2009, the Judiciary's CMlECF system has become fully operational in 94 district courts and
93 bankruptcy courts, and it will soon become operational in all 13 courts of appeals. As courts
and litigants have acquired experience with nationwide electronic filing, new issues have
emerged on how to balance privacy interests with ensuring public access to court filings.
The Judiciary-wide privacy policy was adopted in September 2001 after years of study,
committee meetings, and public hearings. The policy requires that court filings must be available
electronically to the same extent that they are available at the courthouse, provided that certain
personal identifiers are redacted from those filings by the attorney or the party making the filing.
The personal identifiers that must be redacted include the first five digits of a social-security
number, financial account numbers, the name of a minor, the date of a person's birth, and the
home address in a criminal case. These redaction requirements were incorporated into the
Federal Rules amendments promulgated in December 2007 after the public notice and comment
period prescribed under the Rules Enabling Act. These rules, which also address other privacy
protection issues, meet the requirements of the E-Govemment Act.
The 200 I Conference policy and the 2007 privacy rules put the responsibility for
redacting personal identifiers in court filings on the litigants and lawyers who generate and file
the documents. The litigants and lawyers are in the best position to know if such information
is in the filings and, if so, where. Making litigants and lawyers responsible to redact such
information has the added benefit of restraining them from including such information in
the first place. Moreover, requiring court staff unilaterally to modify pleadings, briefs,
transcripts, or other documents that are filed in court was seen to be impractical and potentially
compromising the neutral role the court must play. For these reasons, the rules clearly impose
the redaction responsibility on the filing party. The Committee Notes accompanying the rules
state: "The clerk is not required to review documents filed with the court for compliance with
this rule. The responsibility to redact filings rests with counsel and the party or non-party making
the filing."7 The courts have made great efforts to ensure that filers are fully aware of their
responsibility to redact personal identifiers. Those efforts continue.
The reported instances of personal identifier information contained in court filings is
disturbing and must be addressed. The Rules Committees' Privacy Subcommittee, which
developed and proposed the 2007 privacy rules, is charged with the task of examining how the
rules have worked in practice, what issues have emerged since they took effect on December I,
2007, and why personal identifier information continues to appear in some court filings. The

7

Fed. R. Civ. P. 5.2 (Committee Note).

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Honorable Joseph I. Lieberman
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Privacy Subcommittee, which includes representatives from the Advisory Rules Committees
as well as the Court Administration and Case Management Committee, will consider whether
the federal privacy rules or the Judicial Conference privacy policy should be amended and how to
make implementation more effective. The subcommittee will review empirical data;
the experiences of lawyers, court staff, and judges with electronic court filings; the software
programs developed by some district and bankruptcy courts to assist in redacting personal
identifier information; and other steps taken by different courts to increase compliance with
the privacy rules.
While this work is going on, the Judiciary is taking immediate steps to address the
redaction problem. Court personnel have been trained in administering the privacy policy
and rules; additional training is taking place. On February 23, 2009, the Administrative Office
issued a written reminder to all Clerks of Court about the importance of having personal
identifiers redacted from documents before they are filed and of the need to remind filers of
their redaction obligations. Court clerks were directed to use a variety of court communications,
such as newsletters, listservs, continuing legal education programs, and notifications on websites
administered directly by the courts, to reach as many filers as possible, as effectively as possible.
Plans are underway to modify the national CMlECF system to include an additional notice
reminding filers of their redaction obligation. In addition, all the courts have been asked to
provide information on their experience with the privacy policy and rules. Early responses
have included some promising approaches that the Privacy Subcommittee will consider for
possible national adoption.
The Privacy Subcommittee does not underestimate the difficulty or complexity of the
problems. Court filings can be voluminous. Some cases involve hundreds or even thousands
of pages of administrative or state-court paper records that cannot be electronically searched.
Redacting personal identifier information in certain criminal proceedings may interfere with
legitimate law enforcement prosecutions. Erroneously redacting information can affect the
integrity of a court record. The propriety of court staff changing papers filed in private civil
litigation is an ongoing concern. Internet access to court filings present other privacy and
security issues besides the redaction of the personal identifiers specified in the 2007 rules,
and these issues need to be studied as well.
The resolution of these privacy issues will involve important policy decisions that
require careful and comprehensive consideration and input from the bench, bar, and public.
The Judicial Conference and its Rules Committees look forward to continuing this dialogue
with you.

* * *

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Honorable Joseph I. Lieberman
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Ifwe may be of assistance to you in either of these areas, or on any other matter, please
do not hesitate to contact the Office of Legislative Affairs in the Administrative Office at
202-502-1700.
Sincerely,

Lee H. Rosenthal
Chair, Standing Committee on
Rules of Practice and Procedure

<L.,e·'!Ji
Secretary, Judicial Conference
of the United States

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