Monday, March 16, 2009

Editorial: Bring more sunshine to the courts

Editorial: Bring more sunshine to the courts

Americans confront expensive hurdles when seeking federal court documents.

When Americans talk about government secrecy, they usually point to craven legislators and executives who conceal the people's business. They often forget about the third branch of government. Judges sometimes are just as drawn to the shadows.

The courts too often forbid cameras and recording devices from courtrooms -- or just the timely release of recordings. Unless citizens can attend a hearing in person, they have scant opportunity to review the real action before the bench, whether the Supreme Court or the many federal appellate and district courts.

The testimony and arguments at trial are only a part of the judicial record, though. More voluminous and perhaps more important are the many filings, briefs and decisions that accumulate in courthouses. Those documents contain the underpinnings of law and who sided with whom for what reasons.

The federal courts erect barriers to those records. Sure, they are technically public, but Americans have neither easy nor affordable access to them.

Federal court records go into the Public Access to Court Electronic Records system. PACER is an online database designed for an older, less nimble Internet, and it shows. It is difficult to navigate and search. It also takes some work just to receive access. One must turn over a fair amount of personal information and wait for confirmation by snail mail.

Once someone does find a decision or brief, downloading it costs 8 cents per page. Given that the documents associated with a particular case can run to hundreds or thousands of pages, the costs add up quickly and become prohibitive to all but lawyers and the most dedicated watchdogs.

Sen. Joe Lieberman has raised some tough, overdue questions about PACER. He points out that the courts, as of fiscal 2006, had built up a $150 million surplus in their technology fund thanks to the fees. Many lawyers file digital copies of documents to begin with -- no scanning necessary.

These sorts of documents should be free so that all citizens can review what their courts are doing. The minimal costs of serving up digital documents ought to be borne by all taxpayers, just as all local taxpayers pay cities to provide council agendas online.

They should also be easily searchable. When Google so easily finds information, PACER is an embarrassment.

Recently some citizens began downloading large chunks of PACER through a temporary free access program. The judiciary shut down the program to stop them. It's hard to say if the courts were simply shamed by the fact that citizens could post documents in a better way at or if they were just so wedded to the profits of secrecy.

The Judicial Conference of the United States, which makes policy decisions for the courts, meets Tuesday in Washington. Maybe it will celebrate Sunshine Week with serious action to improve access. If not, the rest of Congress should join Lieberman and require greater openness.

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