Thursday, March 23, 2023

Call it Progress

There are a great many Americans that find some avenue to criticize the federal government. Goodness knows that government seemingly strives its best to provide those critics with ammunition and motivation. However, there are moments in which we may perceive a glimmer of hope from those that provide national leadership. That was the case back in the dark ages of 1987. It was a nascent moment in the information age.

PC Computers were gaining traction. We were connecting computers to one another using our telephones and amazing devices called "modems." We would communicate by "dialing up" another computer (host) and either pulling information from it or using its power and energy to accomplish tasks. It was indeed a golden age. We thought we had come so far. In fairness, our perspectives were limited to the contemporary use of papyrus tablets and mud. In that era, the United States Federal courts became enamored with a plan to eliminate the challenges of court record access. In 1988, there was a dream of "Public Access to Court Electronic Records," known as "PACER," according to an article on the United States Court website 25 Years Later, PACER, Electronic Filing Continue to Change Courts, December 2013. The goal was to democratize access to information, to decrease the expense of delivering, storing, and retrieving information regarding court files. It was, without a doubt, an inspiration.

The 2013 25th-anniversary article notes that the impact of PACER was profound. It "fundamentally changed how federal courts, and the lawyers, judges, and staff who work in them, perform their jobs." While the article acknowledges the 25th anniversary of the humble 1988 discussions and beginnings, it also notes that public access began in the late 1990s. There were challenges and evolutions through much of the early twenty-first century. But, in all, it has been an admitted boon to much of the federal litigation process.

The Florida OJCC began developing electronic filing and case management in 2002. We were fortunate to have a large and abled foundation. The Division of Administrative Hearings had been developing and using internal proprietary case management software for a few years when the OJCC was transferred there in 2001. The first OJCC case management program, called at that time simply "JCC," was largely an adaptation of DOAH's existing but nascent program.

Through the early twenty-first century, we began with accepting PDF documents by email, scanning old files for archiving, eliminating file rooms, surplussing file cabinets, and evolving to a digital age. We built electronic filing in 2003 and 2004. We deployed it finally in 2005, began promoting it in 2006, and never looked back. The combination of that technology and our foray into video hearings prepared us ultimately for the great pandemic of 2020. By then, every workers' compensation practitioner was using electronic filing. And, it was all free to the user.

Free to the user, and essentially to the system. The OJCC designed, developed, and deployed the database, the electronic filing, the digital record on appeal, and more without asking for a single dollar in additional funding. There were programming costs but in the scheme of things those were nominal and were absorbed by the existing budget. At a fraction of the cost incurred across other state systems, Florida deployed a dynamic and effective system. We never charged a single user a cent.

Not so in the PACER example. That electronic filing alternative, then mandate undoubtedly saved lawyers and litigants much money. The convenience, the efficiency, and the flexibility are all wonders. There were undoubtedly corresponding savings on the government side, with less need for clerks, file cabinets, file rooms, and more. But, the U.S. courts charged users. Despite the savings from such efficiency, there was a cost to the consumer.

Critics have complained that the PACER system is "is tremendously profitable." Though there was some contention that public access should be permitted, critics complain that documents are instead locked behind a "paywall." They allege that "the PACER site looks like an artifact of the 1990s," and that the profits generated are "not even improving the actual system." Wired published these criticisms in 2016, including reference to a lawsuit seeking change.

According to Wired, the system had recently (2014) generated user fees of "$145 million" compared to a projected "annual operating costs of less than $30 million." The lawsuit alleged that profits were used for various other niceities such as "$28.9 million for courtroom technology upgrades," "flat-screen monitors for jurors and new audio systems for courtrooms." The critics contended that public access should be less expensive and the profit margins of the government adjusted accordingly.

In 2022, News Leaders noted Congress Should End Restrictions to Public Records by Passing the Free PACER Bill. This critique in 2022 somewhat reiterated the 2016 complaints noted above. There are issues of "antiquated design, clunky search functions, and difficult-to-navigate software." The article is critical of the segregation of data into various databases, and subtle distinctions in the way information may be used.

But, the article is most critical regarding the cost. The author notes that "PACER charges fees for every search and document download, at a rate of $0.10 per page." There is acknowledgment that this is a minor sum and that there is a "per document" cap of $3.00. Despite this, the contention is "these fees add up." The author notes that when Congress enabled this experiment it constrained the charges, allowing them “only to the extent necessary,” and imposing a restriction of charges being “reasonable.”

There is acknowledgment of The Open Courts Act of 2021, a proposed effort to eliminate fees and modernize the PACER database system. Without doubt, such modernization would be a monumental challenge, and yet the resulting benefits would seemingly be as profound. The Congressional Budget Office characterizes the goal to be twofold:
  • to establish a centralized, cloud-based case management system for all public court records that is accessible to the general public at no cost.
  • That system would consolidate the dozens of case management systems currently in use throughout the federal judiciary
Critics of PACER advocate change. If the computer age has taught us all anything, it is that change is persistent, inevitable, and challenging. I have been through many rewrites of the JCC system. I have struggled with bits, binary, SQL, and a raft of other complications. I would be lying if I claimed to understand them all. I have tried, but let's be real. The (r)evoltution has been inspiring and rewarding (not $145 million rewarding; perhaps "gratifying" is a better word).

We now celebrate the last 20 years of OJCC electronic management, and harken back to those days in 2003 when the first iteration of our database system began to change how District offices worked, processed paper, and communicated with Tallahassee. We celebrate those days in 2003 and into 2004 when we discussed how electronic filing might work, raised objections, debated policy, and envisioned change. We struggled with the naysayers.

The world is full of naysayers. See Negativity and your Inner Pooh (January 2017) and The Eoyores Walk Among Us (November 2019). Those "it'll never work" ankle weights are a constant presence in the world. In their defense, they are often right and some innovation does not in fact work. There are many who can see the challenges, the roadblocks, and the excuses. But, fortunately, we have been blessed with a team that could instead see the promise and the horizon.

The OJCC electronic filing package is ready, willing, and able. It has been brought to you with no extraordinary expenditures, no usage charges, and fairly little fanfare. As I reflect on the last 20 years, I am proud of those that built it and the community that embraced it. As we watch to see how PACER will evolve next, I am grateful that our little experiment was as effective and as efficient as it was. I worry about the day when we are challenged to undertake a rewrite as grand and expansive as the Congress is now discussing. While that day may come, it is thankfully not this day.