The following administrative order was issued by the Second Circuit,
which essentially refuses to charge $1.00 per minute for access to the
Court's opinion bulletin board system as "mandated" by the Judicial
Conference.
The Seventh, Sixth, and Eleventh Circuit have apparently adopted a
similar position.
At present, the First Circuit is charging, and the Fourth, Eighth, and
Tenth Circuits have announced that they intend to charge.
In addition to the cost barrier, the other barrier raised by this system
is the requirement to establish a PACER acoount, which will in practice
mitigate against use by the general public.
It should also be noted that the District Courts charge $60 an hour for
access to the PACER docketing systems. It is interesting to note that
despite this rate, a party may not rely upon the docketing information!!
HyperLaw believes that courts should not charge more than the incremental
costs of providing information, and that court charges
should not exceed private sector charges for providing similar services.
Thus, under this principle, not only are the $1.00 per minute charges
excessive, but so are copying charges which are in some courts $.50 to
$1.00 per page, as compared to the "Kinko" price of $.05 to $.10 per
page. Because United States District Court opinions are in general
available only through photocopying, this pricing policy has the effect
of creating artificially high barriers to access to the market of
republishing those opinions, and reducing the number of competitors that
can enter this market on a nationwide scale, thereby increasing costs to
all consumers.
It would appear that many courts rely upon the pricing schedules
established by the Judicial Conference. The Second Circuit action would
suggest that those charges and the policies behind them need to be
reexamined.
Alan Sugarman
HyperLaw, Inc. ®
Federal Appeals on Disc tm CD-ROM
sugarman@panix.com
212-787-2812
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THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
-------------------------------------------x
IN THE MATTER OF ELECTRONIC PUBLIC ACCESS ADMINISTRATIVE
-------------------------------------------x ORDER
JON O. NEWMAN, Chief Judge:
Pursuant to Public Law 101-515, section 404, the Judicial
Conference of the United States has established a fee for public
access to Federal Court records available in electronic form.
The miscellaneous fee schedule provides a fee:
For usage of electronic access to court data,
$1 per minute of usage [provided the court
may, for good cause, exempt persons or classes
of persons from the fees, in order to avoid
unreasonable burdens and to promote public access
to such information].
In Janaury 1991, the Second Circuit made available to the
public, without charge, access to its Public Access to Court
Electronic Records (PACER) system and to its Electronic Dissemination
of Opinions System (EDOS). Docket sheets were provided by the PACER
system and the text of published judicial opinions were provided by
EDOS. The PACER and EDOS systems were consolidated into the single
Appellate Bulletin Board System (ABBS) in January, 1995.
Observed usage on the predecessor systems averaged approximately
3 hours per day by 200 users on the single-user PACER system plus 5 hours
per day by 61 users on the two-user EDOS system. This usage would have
amounted to approximately $124,800 per annum if billed at a rate of
$1 per minute.
The variable costs of providing electronic public access are
predominately the cost of 3 telephone lines which amount to approximately
$30 per line per month, for a total of $1,080 per annum. It is believed
that this cost is offset by savings to the Court which would otherwise
bear the burden of providing the same information free of charge by means
of public telephone inquiries to deputy clerks and personal visits to the
office of the Clerk of the Court. In addition, costs to the bar and the
public, who are geographically dispersed throughout the states of New York,
Connecticut, and Vermont, are substantially reduced by the availability of
electronic public access to court information.
The Court concludes that imposition of a fee for electronic
access to its public electronic records at a rate in excess of 100 times
variable costs would create a serious impediment to the promotion of
public access to such information, and would be an unreasonable burden
on the Court, the bar, and the public.
The Court therefore exempts all classes or persons from these
fees to avoid unreasonable burdens and to promote public access to such
information.
Jon O. Newman
Chief Judge
Signed: New York, New York
January 25, 1995
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