 The panel that we have today, the idea is to give you concrete examples of what's going on in jurisdictions from which we can then start drawing out some of the issues and discussing some of the concerns that folks have about access, again having something to work from in a sense. So there are two people here from the PACER system, the federal PACER system, which has been discussed today several times. We organized this panel before we knew that they needed an opportunity for rebuttal on some levels on the PACER system, my description not theirs. We have Susan Del Monte next to me, who's an attorney advisor for the court administration and policy staff in the U.S. Administrative Office of the Courts. Next to her is Michelle Ishakayan, she's newly appointed chief of the Federal Judiciary's Electronic Public Access Program Office and has previously worked deputy chief of the Information Technology Policy Planning and Budget Office, so again the two of them have a lot of information and knowledge including historical about the PACER system. And then finally we have Art Cohen, who's the vice president of operations and general counsel for the Concord Inc. business but more importantly he's here representing the, I have to read this to get a straight, National Association of Professional Background Screeners and we have several other folks here also representing the constituents of that association and we asked them to come and talk from the private sector side, I love it, data harvester. I'm also from Minnesota way back and I get the harvest thing is something familiar to me as well, so I'll use that term because it's positive, thank you Paul. And we thought there's a value in you hearing what it is that they're interested in doing and what they're providing and that sort of thing, so we're going to kind of in a sense treat them as just another jurisdiction or example of information access and users so you can compare and contrast that thing. So with that I will start with the PACER folks, Susan and Michelle. Thank you. We wanted to just give you a little more background on the PACER system. What it is that we provide through PACER, how much do we charge for it, how does it all work? And we're going to give you I think a little more information too about how we support the program and how it's run because that's sort of a key component. An important thing to remember is that federal courts are courts of limited jurisdiction. We hear disputes arising out of federal statutes such as felony criminal statutes or employment law actions, a lot of our civil cases are based on employment laws that are federal in nature. We also hear diversity of citizenship actions where the amount in controversy is over $75,000. So generally there are no family law cases. There are very few if any probate cases, no adoptions, no divorces. It's a real sort of distinct group of cases that we have there. We also have some specialty courts like the court of federal claims, the US court of international trade, but a lot of the issues and I want to just acknowledge this, I've run a lot of the issues that the state courts have to wrestle with with those highly personal documents that come up in family law matters. We simply don't have. And so our issues in deciding what to put out there and how to have it available to the public were a little bit different than a lot of you in the state courts are wrestling with. So although our jurisdiction is rather limited, the federal system itself is fairly large. Looking at the courts across the country, we have 94 different district courts, 90 bankruptcy courts, and 13 courts of appeals. Good afternoon. And when Alan said newly appointed, that's as of September 15th, so very newly appointed. I got a week on that. The mission of the federal judiciary's electronic public access program is to facilitate electronic public access to court information at a reasonable cost in accordance with our congressional legislation and existing judiciary policies, security requirements, and user requirements. The public access program has several components, including a very small program office in Washington, DC, which is responsible for the overall management of the program. Our program operations are handled by a service center in San Antonio, Texas. I'd like to point out that this is not an outsourced operation. We're very proud of our government management and staff. The service center has many functions, including user registration, centralized help desk services, and billing. In addition, it's responsible for the development and maintenance of our technical infrastructure. I have to say, PACER is really less of a system and more of a technical infrastructure. But we'll get into that a little bit later. As we have grown, our workload has grown considerably. It's just incredible, both in terms of responding to users of which they're nearly a million now, as well as the complexities associated with running such a major operation, particularly a financial operation. That requires working closely with the U.S. Department of Treasury and meeting advanced financial compliance and security requirements. As we've already told you, and you've probably heard in other sessions, our system is called PACER. That stands for Public Access to Court Electronic Records. I've left a bunch of brochures out on the table in the lobby. I hope you have a chance to take one. There's a lot of misinformation out there about what PACER is and what it has in it, and we're hoping to try to clear some of those up today, not only with the brochure, but also if we don't answer your questions today, you should know that there's a pretty good website out there. It's PACER.U.S.Courts.gov under the Help section on the Navigation Bar. There's an excellent Frequently Asked Questions section that talks both about our electronic filing system, which is separate from PACER, how to use the PACER system, information about PACER billing, and then also information about the policies, what's available, what needs to be redacted, that sort of information. What PACER provides, and why Michelle said it's really an infrastructure, it provides a window for the public to look through and see the court's case management system. That case management system is really separate. They look very similar, and it's easy for people who are attorneys who file in CMECF, which is our case management system, and then go into PACER, and they look almost identical, and they think they're still in the same realm. They're not. They're sort of two different functionalities. What you see through PACER is the clerk's office file. What used to be in the paper files, now it's electronic. But it's really that information that the clerk's office needs to process the cases. So we don't have a lot of information that came, for example, before the charging documents. It was easy for us in writing the redaction principles because there were only a few real data elements that show up frequently in our filings. I often get calls from people in state courts saying, why don't you redact driver's license numbers? Why isn't that a requirement in the federal rules? And the short answer is they just don't appear in federal court filings that are in the clerk's office much. They may be in a system held by another part of the court system, for example, our pretrial services office who examines people who are charged with a crime to make bail determinations. They may have more background information, but that's not typically in that clerk's office file that you're accessing through PACER. When we first started PACER for the federal courts back in the 1980s, it was a modem system. You dialed in to access it, and you could see docket sheets, basically. Over time, courts started adding images of filings. And starting today, or starting, excuse me, in about 2000, 2001, we really moved to being an internet-based system, which showed our new case management system, the CMECF system, which is web-based and which includes PDF versions of all the documents that were filed in the case. Bankruptcy and district courts have fully implemented CMECF, and they've had all of these documents then available through PACER for quite a while. Appellate courts are still implementing the system, but currently it's in use in about 99% of the federal courts. So who gets access to PACER? The answer is really anyone who signs up for an account. I think there's a belief out there that PACER is limited to attorneys. That's not true. I went back well into the 1980s, the 1980 judicial conference reports, when the federal court system was looking at setting fees and charging for access and providing access to its files. And there were some different rates considered early on for different types of users, but it was never exclusively an attorney system. It's always been open to the public as well. So anyone can get a PACER account. You can open an account by providing a credit card online and receive information with your account number nearly immediately. There's a few minute pause while it processes everything. Users who don't wish to provide us with a credit card number can receive their account information through the mail. It takes about a week or so. We don't restrict who gets an account, but we do like the fact that we have our users coming in with a login and a password. It provides some level of security for us. On rare occasions, we do have requests to find out who access to a particular document through PACER. And having that login and password allows us to find that out in appropriate situations. We do have a policy that reflects our PACER users' right to privacy and their dealings as well. But on rare occasion, there is a law enforcement request that we have policies in the judiciary to work with them. And if it meets our standards, we will work with them to provide information. So what do you get access to once you have that PACER account? Basically, you can see any non-sealed document that's in that clerk's office file. And you get to it by seeing the docket sheets. And you can see it virtually immediately upon filing. Once it's been filed, it's made available to the public. There's one exception that sort of proves that rule. It's a relatively new policy for us. It's for transcripts of court proceedings. Transcripts of court proceedings are brought to the clerk's office or uploaded by the court reporters from their own systems. And for the first 90 days after the clerk's office receives them, they are not available for public access through PACER. You could go to any courthouse, go to the clerk's office, and you could see the transcript there. It's typically a PDF file, not a paper record. But for that first 90 days, we have the attorneys go through the transcripts looking for information that the federal rules of procedure require to be redacted. And our earlier panelists ran through what those are, dates of birth, social security numbers, that type of information. That 90-day period also allows us to comply with a statutorily created right for our court reporters to sell copies of transcripts. There was a big concern in the judiciary. We value our court reporters. And there was a concern that if the transcripts were immediately available through PACER, at the lower rate that we charge for electronic access that really would pretty much eliminate a court reporter's ability to earn income that they're statutorily allowed to earn. So that policy went into effect earlier this year. It was implemented in district courts and it will be implemented this fall or winter in bankruptcy courts. We're working out some technical difficulties. Additionally, through PACER, you can get copies of certain judiciary statistical reports. The Civil Justice Reform Act reports, for example, do spell out, they're filed I think by district and by judge how many motions have been pending for more than six months and how many cases assigned to the judge are more than three years old. Those are available through PACER as well. You can perform searches through PACER. As one of our other panelists showed you the search screen. Names of attorneys can be searched, names of parties, case numbers, and dates of filings of new cases. You can specify all of the employment law cases filed in the last week. When you're doing that though, you're working on that particular court system. Each court maintains their own case management system and so when you're on the district of New York's, Northern District of New York's website, you're looking at that court's database for those types of searches. We also have another feature called the US Party Case Index which you can get you through pacer.gov and enter in a party's name or social security number and if there is a match to that, the name of the case will come back to the searcher and that could be at any of the courts that participate in the US Party Case Index and nearly all of our courts do participate. So it gives you a little more of a national level search. Excuse me. In terms of charges, we have a congressional authorization to charge a reasonable rate for access to our information and that rate is set at a level to design to recoup the cost of providing access. The use of the revenues that come in is limited to providing and expanding public access. And on multiple occasions, the judiciary has actually gone in and reduced the rate for the access because there simply was too much money coming in to be honest. Back in the days of the dial-up service it started at a dollar a minute and then it went down to 75 cents and then it went down to 60 cents a minute. In 2001, we switched to the internet service and to try to keep the price comparable with how much data you would receive in that minute at 60 cents on the dial-up service, the fee was set at seven cents. We did need to raise that in 2004. It's now at eight cents a page. There's also a cap on the documents that you access. So you never pay more than a 30-page document. So any document you access in paces, $2.40 with one exception, again, the transcripts of court proceedings. There's no cap on transcripts of court proceedings. They could be 200 pages long and in setting the fee schedule, the judges decided that the pricing for the transcripts online should mimic as closely as possible the pricing for transcripts offline where you again pay for every page you're getting. So that document is excluded from the caps. That rate of eight cents a page applies to every user. We do not have different levels of service or access for government users or for bulk data resellers or Joe Public walking down the street. Everyone pays the same rate and yes, you did hear me correctly, government users do pay. Those who are paid with judiciary appropriations are exempt from the fees. And we did that partly because it just didn't make sense to have one part of the judiciary paying another part of the judiciary, the bureaucracy would just get nuts. And so the court personnel don't pay. Also attorneys who are, for example, appointed as a defense attorney under the Criminal Justice Act, those attorneys typically have two PACER accounts, one that they use for their fee paying clients and one that they use for their appointments. And we rely on them to use the honor system to use the correct PACER account at the correct time. We've had very few problems really over the years with it. But the clerks of court do, or they're instructed at least to sit down quarterly and take a look at the usage levels and make sure there isn't the exempt account that just is totally out of whack. It's used like this and then suddenly spikes. We have a formula online and this is on the frequently asked questions page if you're really super interested. For those reports that can be run that are charged at eight cents a page, but don't really line up with what's typically on an eight and a half by 11 inch piece of paper, there's a formula out there to figure out how many lines of data equal one page of information. We also have another type of exception, users who don't pay at all. And those are at each individual court level, the chief judge has the ability to grant fee exemptions for researchers and other individuals who qualify if they show a need that they want to get access to the court data to be able to perform their research. I'm gonna interject for a moment. We do not have the ability in the program and frankly in my very few weeks, I've already confronted this several times, we have no ability to grant national exemptions. We don't have the ability to grant it nationally through our policies and the local courts, they can only grant the exemption for their own court. This creates a lot of confusion. We also can't grant exemptions for research that's being funded by a government agency and that's caused a little bit of consternation. We also, through our fee schedule that we set up an eight cents a page charge, we have certain information that we don't charge for. For example, if an attorney is a party on a case, they through our case management system, which is remember what you're seeing through PACER, they receive a copy of every filing that they're entitled to without charge. So the parties in the case automatically get one copy free of just about everything. There's a minimum threshold for those public users who open a PACER account unless you accrue charges of $10 or more in one calendar year, no amount of the fee is owed. So a bill is never issued unless the fees get over $10 or more and that's 120 pages at eight cents each. So it's quite a few documents you could download and that was really designed to protect those citizen users who were interested in information but didn't want to incur huge bills. This is a way for them to use our system just periodically and have it cost them nothing. Additionally, we have a system for courts to designate their documents as opinions and opinions are offered on a special opinions report in PACER at no charge. We also offer calendar reports for people interested in seeing what's going on in the court. You can run a calendar report on PACER at no charge. So how much are we getting? In fiscal year 2008, we collected approximately $80 million in revenue and you can add on top of that about $20 million in exempt usage. The breakdown of that is as follows, about 50% of that was for bankruptcy court data, 40% of that was for district court data and I think the difference between my number and Professor Martin's numbers are, you're probably dealing from an older branch article and as the district courts have come up on PACER, see, well I should go back, our case management systems really grew up in the bankruptcy courts, then we developed them in the district courts and now in the appellate and you see it in the usage although of course our bulk of hearings is mostly bankruptcy as well but 50% in bankruptcy, 40% in district, 3% in appellate courts but we anticipate that will go up as more and more appellate courts come up online and 7% is government usage. All of this revenues we stated before has to be used to enhance public access to the courts, more specifically we use the revenue to fund the judiciary's case management systems, both present and future which we're starting to think about now, do more than think about plan four. Each court's case management system and it's database and servers, it all works off of a kind of a base system but everybody has their own system and they modify it accordingly. The federal judiciary's public websites both national and local, the service center I talked about earlier, staff and technical infrastructure. We have a separate network and this is really important, I'll get to why this is really important for state courts as you think about what you're doing but we have an intranet in the judiciary that's a private network. We also have sitting around it a public network the PacerNet which is key to the way we do our business with the public. We also fund related programs such as the bankruptcy noticing center as well as we're getting into the maintenance and expansion of the judiciary's courtroom technology program. I'm sorry that Fred Lutterer is sick and thought that might be of interest to him. Finally, we are funding some pilots with an eye to the future. I know the past is instructive and important. Frankly, I'm new to the program and I'm really excited about the future. One of the things we're working on now is sort of that stage four we saw earlier through a digital audio pilot that's live in five courts and as a way to get into the future we're going to start a program assessment in 2009 and I wanna just say word or two about the program assessment. We are really excited about this. We've got a lot of support for this and we're gonna segment our user population, we're gonna do focus groups, we're gonna do surveys and we're gonna look at difference at what is the public? The public is the media, the public are researchers. I find it incredible that our program doesn't have a way to kind of help researchers out. I mean, there certainly have to be a fee associated with it but there are definitely ways to do this and so we wanna look at some of those demands. Of course, we have our litigant population, we have our general users so more to follow on that. We'll be looking for people to participate in the focus groups and give us all or. One of the things Ellen had asked us to think about what are some of the policy issues we've faced with our fees in the last three to four years. So I kinda came up with a list here. There's always a question of how much to charge. When we raised the fee to eight cents in 2004 that was a bit of a debate. Even having a fee in 2001 for the internet access was a bit of a debate too but we've used the fees as Michelle and I both have said Beck, they have to stay within the program so we've used it to build the case management function which provides those documents for the public to get to and really we don't, it's not a profit center, it's just funding all of that activity and the infrastructure and it's worked out well but there's always a question that arises about should we consider raising or lowering it. Additionally charging government users is a question that comes up from time to time. We have a congressional authorization to do that, we've had it for some time. It's just something that we frequently get calls about from people, why do you do that? And we really need it to recoup a lot of our costs and a number of our users are from government agencies and we're aware that our opinions report which offers opinions for free may not be really fully utilized by the courts and so we're looking at how documents are flagged as opinions so they'll be offered without charge to make sure that that's being applied correctly in the courts and that may be an area where we can show some definite improvement and additionally then in the last year or so we also removed from our fee schedules the fee for dial-up access. There simply was not a demand for it anymore, it got sort of overtaken by the internet access and our new software as it was being designed wasn't quite ready to be capable with it and we decided it wasn't worth the expense of making it do that so there's no longer a fee or access available for dial-up. And now we get to the why you care part. Sharing our experience and the why you might care. We've received a number of requests from other court systems, article one courts, state courts, local courts, at least one court that's represented in this room right now to share our case management software and to a lesser extent to share our electronic billing infrastructure. We are currently working with the Court of Appeals for Veteran Claims and the State of Mississippi to test the feasibility of releasing our case management software and in the case of Mississippi our billing processes as well. The Court for Veterans Claims has very successfully integrated CMECF into its environment at little cost and with minimal effort I think by either party. It's worked quite nicely. We did have to make some modifications to the software especially for security purposes. Mississippi has had a tougher go of it and I think one of the biggest issues there is their technical infrastructure is so vastly different from ours. I mean complete and totally different that it's not, it just doesn't plug and play. That said we're working with them to make sure this is a success. In terms of one of the things we're working with Mississippi on right now is in terms of a PACE or service center type operation you know frankly our service center is handling such a bulk of billing and calls that I think the may, and it grew up over time but now it's a pretty big animal that for anything but the largest of the system's California type system I'm not sure it's something a state system would wanna take on. My recommendation at least to the state of Mississippi is they integrate the CMECF, the case management system develops billing logs and that they integrate the data from those billing logs into their existing fee collection processes and supporting infrastructure. When these, I don't think they're exactly pilots but when these studies are done the federal judiciary will be issuing reports on them. Veterans claims will be much sooner than Mississippi. And to the title of this session the promise of charging fees and the pitfalls. Charging a fee has made a robust electronic public access program possible and this is particularly important given the limited appropriated dollars. At this point I don't know how we would if we got rid of our fees, support all of the programs that the fee is supporting. We've carefully considered how to expand but charging a fee is difficult. I mean there are people who won't pay the fee, can't pay the fee or wouldn't quite be able to figure out how to get up and running. We've thought about how to deal with that. One of the things we've done, Susan talked about it, is our exemption policy. But we've also undertaken a pilot with the government printing office to provide fee exempt access at federal depository libraries. At the moment we have the pilot on suspension to iron out some unforeseen issues but both the government printing office and the federal judiciary are really committed to moving forward in this. And then my final kind of comment on the pitfalls and for those of you who are charging you may have also encountered this. When one has something of value, others might want it. We have had one or two unfortunate incidents some larger than others and quite frankly theft of government data, it's unpleasant, the aftermath is unpleasant but it also because of the way we've set up our infrastructure when people go in to steal our data they tend to do it by running scripts against our case management database. And what it causes are performance problems for that court and the filers. So to my mind more egregious than the theft of the data is really the fact that the way it's being done. We know who our bulk users are, they tend to come in at night. Frankly, we find data theft because it's people downloading and bulk during the business day but I think that's really unfortunate. So I'll kind of leave it on that note and turn it over. I want to clarify for folks what the fees pay for. Just factual, not judgmental. You can have a case management system and not provide access. A lot of courts have that but that's being paid for out of pacer fees. The case management system itself. Then you paid for the access part itself what people dial into, that got paid out of the fees. And then you're using it also to pay to develop the electronic filing. I always get the acronym wrong. CMECS, which is both Electron Filing and our current case management system and it will probably fund future versions which we're working on now. So it's funding more than just the access piece, what they're charging. They're funding a lot of development and the other activities that aren't. You have to have the CMS to get to access and they're funding that. Is it funding hardware replacement, hardware? Oh yes, it funds the entire program. Center and all that stuff, yes. So it's a pretty broad category of stuff that they're funding out of that. And all with congressional notification They know what's going on. Oh. Yeah. And you're telling them. And you're telling them. Yes, they're very interested in this. They have to report back in exquisite details. But it's not budget. It's kind of off budget. It's like it's own little account in a sense. The fees, and that's very generally said. The way it's been described to me by our general counsel's office is that it's taken into account when appropriations are made. So they're certainly fully aware of it. Yeah. I'm not saying they're not aware of it. No, it's appropriations. It sits within our larger Judiciary Information Technology Fund. And when we request appropriated dollars in our submission to the Hill every year, which I've... Part of it is... In my former job, I got to help prepare. All of this is very clearly delineated. So we're getting X million dollars a year from the fees and we're using it to pay for this. Yes. And that's laid out. So there's transparency about what's coming in and what it's being used on. Yes. And it's being used for the wide range of things. Yes. And not only do we put it in our congressional budget submission, we have to put it in our financial plan submission and the Judiciary Information Technology Fund by legislation has to be submitted to Congress on how we spent the money every year. Okay. It's high level, but it's pretty clear. It's right there. There's nothing hidden about it in that sense. No. It's not sealed. No. Okay. So questions about... So I'm happy to talk about it. Questions about PACER specifically. And then we'll talk about a couple others. There's a question up here. Go ahead. Mike. Where's... Thank you. Mike Johnson from Minnesota. Are you charging eight cents a page to criminal justice partners, such as the FBI, NCIC, CIA, Homeland Security, or are you doing integrations with them or are you required to provide them with data outside of PACER? We charge government users, including the Department of Justice and all of their branches and the Department of Homeland Security and all of theirs. For Department of Justice, we reached an agreement... Gosh, probably three, four, five years ago, maybe longer, where we provide them with an estimate of what their amount will be, about 18 months before the fiscal year starts so they can get appropriate appropriations. So there's no surprises. They have an estimate of what it's going to be, but they all... But they're billed on actual use. They're billed on actual use. And in fact, that's interesting. Well, there's one exception, which is a relatively recent congressional mandate and that's the victim's notification system. We have to provide a data feed. Right. We do provide a data feed to a certain part of the Department of Justice that puts it in their victim information system and it's used to make phone calls out to... I think it does automated phone calls to victims to notify them of court hearings and things that are coming up. But that's a very limited... Pretty small. In fact, I understand that at least one federal agency is now discouraging use of PACER because West and Laxus have given them such favorable flat rates and we charge on usage. Okay, other questions? Yeah, Tess and Dewey. The talk has mostly been about documents. Now, so let me switch over to more case management information and to this bulk data question. So if I... Can I get from PACER and the information on all the people who are convicted by the federal courts in the last month, all of the basic information about them you hold, whatever that may be, what the charges were and what the disposition was, I don't want any paper, I don't want any documents, I just want the data. Can I get that out of PACER and if so, how? Basically, it would be tough. We open up our system and it's there you can log in and what we've found is that, as Michelle pointed out earlier, most of the bulk users come in at night with scripted programs and they've seen the system, they know how the database is set up and they have systems that go through and extract the data that they want, the information that they need. So we don't sell, we don't formulate the data. We couldn't give you the specific data elements you're asking for in a particular report, but we just open up what we have that's not sealed and we allow you to come in and get what you'd like. So follow up, if PACER won't give it to me, can I go send the letter to the administrative office of the U.S. courts and say, give me a bulk data download outside of PACER as PACER is the only way, the exclusive way for public access to the data about federal cases? There may be, yeah, in a nutshell, yes, PACER is the access and a request like that, which we do get frequently, would go through, we have a working group of judges and court officials who make a recommendation to a judicial conference committee which sets the fee schedule and they've made the decision not to have specialized bulk reports available. But you can get the data from PACER one case at a time. If you could figure out how to set up a query to get what you wanted, they could get the data. Yes. I mean, I'm not saying that's easy. It may not even be possible on a charge basis. I don't know, but you'd have to write your own middleware, so to speak, to pull out data, I guess. That's the, yeah, interesting. Okay. Larry? What about courthouse access? If I don't wanna create a username and password, if I don't wanna pay, can I walk into a courthouse without any of that and look at a file or look at documents? Sure. The trick is though, you've gotta be at the courthouse of the court whose information you wanna see. So if you're in the Northern District of New York and you wanna see their files, you could simply go to the clerk's office and there are public access terminals right there in the clerk's office that you can sit down at. But it would only be New York. You couldn't look up South Carolina or California or something. Okay. Are there questions about Pacer? Okay, I'm gonna fill in, change hats and play Bob Roper, which is tough.