LII’s Thomas Bruce Testifies Before the Judiciary Committee

Thomas Bruce, Director of the Legal Information Institute at Cornell University Law School, spoke before the House of Representatives Judiciary Committee specifically to the Judiciary’s Subcommittee on Courts, Intellectual Property and the Internet who are exploring issues related to judicial transparency and ethics. Bruce mainly provides comments about PACER the “electronic public access service that allows users to obtain case and docket information online from federal appellate, district, and bankruptcy courts”.

The whole session was live streamed on February 14 and is a couple of hours long so I thought it might be useful to zoom in on Bruce’s comments concerning PACER. I’ve pulled out the links to his commentary and prefaced each with the questions he was asked along with additional comments made during the hearing.

It’s actually an interesting session to watch in full with a number of comments addressing the interaction between the President and the judiciary about the recent decision regarding the U.S. immigration ban.

If you’re interested in Bruce’s comments but want to avoid all this clicking and listening you can also read his written testimony.

In his opening remarks, the Chairman of the Committee as a Whole, Bob Goodlatte, frames the Committee’s hearing as follows:

Goodlatte: This morning we will hear from three witnesses who will present their ideas regarding the ways the judiciary can increase their transparency and accountability. These suggestions include greater use of audio and video recordings in courtrooms; free or lower cost access to court documents through the PACER system or potential replacements for it; and, public disclosure of recusal decisions. Other issues we will consider today are the judicial disability and disciplinary process.

And Chairman of the Subcommittee, Darrell Issa, provides some introductory remarks about PACER.

Issa: Most Americans do not know what PACER is. But by the end of this hearing they will understand that everything that goes on in a courtroom and then beyond all they way through the appellate process is made available to the public through PACER but not necessarily for free. We all know that fees are paid when you’re prosecuting a case and judgments include court costs. What most people don’t know is that the court charges 10 cents a electronic page for their records and makes a tidy profit on it which they use in anyway they see fit and in fact circumvent appropriations … but it does beg the question of should the American people in this day in age receive more information more quickly and less expensively or should we allow the court to set an amount in a vacuum that allows them to use it for areas that are often well outside their essential needs.

Later Bruce provides a summary of his testimony on PACER in a 5 minute introductory comment.

The following questions were then asked at various points during the hearing:

Access to PACER

Issa: I’d like ask unanimous consent that the statement by Professor Jonathan Zittrain be placed in the record in which essentially he offers to make available PACER for free. And I’ll begin there. Professor Bruce is that viable, is it viable to simply offload all of the information of the courts potentially to make it free without commercial advertising?

Communication with Courts

Nadler: Mr. Bruce you have given a lot of careful thought to various ways that you believe PACER could be improved both from a technical stand point and ways to enhance public access to documents contained in PACER. Have you had the opportunity to share your views with the administrative office of the courts?

Barriers to Access

Conyers: What barriers should be removed that prevent the public from reading the opinions of the court in your estimation?

Privacy and Access

This is a relatively lengthy back and forth discussion between Lofgren and Bruce starting with this question.

Lofgren: Ten years ago there was a pretty comprehensive privacy audit that academics performed on the PACER system and they found that there were Social Security Numbers included in the records. The audits were sent to 31 district courts, administrative offices of the courts, the judicial conference and the like. However, it’s my understanding that despite those findings you still find Social Security Numbers scattered throughout the PACER system. The technology of the system is a little bit bulky and I’m wondering if you have observations on what steps could be taken to redact sensitive information in the system or whether we might be well advised to take up some of the private sector offers to take the data and maybe use better technology and as a condition of doing that providing it for free to the public to redact sensitive information?

Machine Readable Format and Metadata

Chairman Issa addresses PACER in his summary comments and asks a final question about metadata.

Issa: I think you made a compelling case. The only thing I didn’t hear was an oddity that is unique to this member and that is that we’ve required the administration to under the DATA Act to put all information in machine readable format. And, one of the interesting things about PACER is even if they handed you all the information in order to make it usable to a broad public it would have to be converted into machine readable with metadata attached isn’t that true?

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