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Court Information/$.75 minute fee/March 29 Senate Hearing
- To: tap-info@tap.org
- Subject: Court Information/$.75 minute fee/March 29 Senate Hearing
- From: James Love <love@tap.org>
- Date: Wed, 22 Mar 1995 12:22:18 -0500 (EST)
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TAXPAYER ASSETS PROJECT - INFORMATION POLICY NOTE
Crown Jewels Project - JURIS, legal information
March 22, 1995
- The Judicial Conference of the United States agreed on
March 14, 1995 to ask all federal courts to charge $.75 per
minute for access to information disseminated
electronically. Courts may except certain classes of users
from the fee.
- Key Senate Subcommittee holds hearings on appropriation for
Federal Courts on March 29, 1995.
- Citizens are encouraged to contact the Subcommittee with
their concerns about access to legal information. [Contact
information for members of the Subcommittee is given
below.]
- TAP asks Subcommittee to take steps to make court
information more accessible to public, by creating a public
domain database of court opinions, and eliminating
excessive fees for access to information. TAP also asks
Subcommittee to prohibit judges from accepting lavish
vacations and cash gifts from West Publishing. TAP's
letter to Subcommittee is attached.
- Chief Judge Richard Posner from the 7th Circuit Court and
other judges have criticized the per minute fee proposal,
which Posner called a "confiscatory tax" on public
information. [Posner's January 3, 1995 order is also
attached below.]
Senate Appropriations
Subcommittee on Commerce, Justice, State and Judiciary
all area code (202) Voice Fax
Senator Phil Gramm (R-TX) 224-2934 228-2856
Senator Ted Stevens (R-AK) 224-3004 224-2354
Senator Mark Hatfield (R-OR) 224-4594
Senator Pete Domenici (R-NM) 224-6621 224-7371
Senator Mitch McConnell (R-KY) 224-2541 224-2499
Senator Judd Gregg (R-NH) 224-3324 224-4952
Senator Fritz Hollings (D-SC) 224-6121 224-4293
Senator Daniel Inouye (D-HI) 224-3934 224-6747
Senator Dale Bumpers (D-AK) 224-4843 224-6435
Senator Frank Lautenberg (D-NJ) 224-4744 224-9707
Senator Robert Kerrey (D-NE) 224-6551 224-7645
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March 22, 1995
Senator Phil Gramm
Chair, Subcommittee on Commerce,
Justice, State and Judiciary
Appropriations Committee
U.S. Senate
Washington, DC 20510
via fax 202-228-2856
Dear Senator Gramm:
I am writing about the hearing on the federal judiciary's
appropriation, to be held on March 29, 1995 in the Senate
Appropriations Committee's Subcommittee on Commerce, Justice,
State and Judiciary. I am asking that you address an issue of
interest to the growing number of American citizens who are
using computer networks to gain access to government
information. We are looking for a member of the Congress to
champion the rights of citizens to obtain better access to
information from the courts. This should be a simple request,
but in fact it is an issue fraught with controversy and
conflict, because West Publishing, the dominate legal publisher
in the United States for more than a century, is fighting to
prevent a revolution in public access to legal information.
As you know, the Congress and the Executive Branch of
government has been moving to develop new ways of making
government information more available to the public. For
example, the Library of Congress and the Government Printing
Office have recently launched programs which provide citizens
with free Internet access to the full text of bills pending
before Congress, the Federal Register and the Congressional
Record. These initiatives have been very well received. Within
the first 50 days, the Library of Congress "THOMAS" System
accommodated more than 1 million requests for information. The
SEC's EDGAR system database was put on the Internet through an
National Science Foundation funded demonstration project at NYU,
and it is now disseminating more than 10,000 documents per day.
In contrast, the federal judiciary is among the least
responsive federal bodies when it comes to public access. For
example, there is no public domain database of court opinions.
West Publishing claims that no one can copy the text of court
opinions which it publishes because of the West "value added"
enhancements, such as corrections to grammar. And West
Publishing claims that it "owns" the citations to a century of
published case law. A 1991 proposal by the Administrative
Office of the Courts to create a public database of opinions and
a public domain citation system was defeated by the Judicial
Conference in 1992 after West lobbied against the provision. As
a result, public access to information from the courts is highly
fragmented, requiring citizens to contact each district and
circuit court to locate opinions. Progress in using the
Internet has been slow, although some jurisdictions, such as the
Eleventh Circuit Court have moved ahead. Only a few of the more
than 90 District courts have announced any plans to make
opinions available electronically, although virtually all of
their opinions are in electronic form.
In recent days the federal judiciary has again acted to
restrict public access to legal information. On March 14, 1995
the Judicial Conference reportedly asked all federal courts to
impose a $.75 per minute fee (reduced slightly from an earlier
$1 per minute proposal) on access to any court information that
is disseminated electronically. In this case, the courts are
blaming Congress, which through an earlier appropriation Act (PL
101-515, Sec. 404) required the courts to impose fees. As you
may know, many federal judges have opposed such fees. For
example, on January 3, 1995, Chief Judge Richard Posner and
eight other judges from the Seventh Circuit Court issued an
order strongly criticizing the fee. Chief Judge Posner, who is
a conservative member of the federal judiciary, said:
Charging a fee for this previously free public
information amounts to a confiscatory tax on public
information. If we had charged nongovernmental users
a fee during the last year, they would have paid
$10,800. When compared with the costs to the court of
about $468 per year, it is obvious that such a charge
is not a user fee, but a tax on previously free court
information.
Posner also pointed out the BBS "not only saves the time of
attorneys and parties, but it drastically reduces staff time
answering inquiries," and he worried that the new fee will end
up costing the courts money as they spend more and more staff
resources responding to public requests for information
manually.
Charging a fee would also add to the workload of the
court staff in monitoring the new billing system as
well as in responding to the additional telephone and
in-person information requests from those who either
did not want to pay the $1.00 per minute charge or
could not register to use the system to obtain the
information that they would need. This would be
particularly true of sole practitioners and small firm
lawyers who do not have a regular federal practice.
Chief Judge Gilbert Merritt from the Sixth Circuit made a
similar argument in a Dec. 21, 1994 Order which stated that "the
imposition of a fee would create a serious impediment to the
promotion of public access to such information, and could create
an unreasonable burden on court staff, who would be required to
respond to telephone or personal inquires that could be made by
potential users of the electronic system." Chief Judge Gerald
Tjoflat of the Eleventh Circuit Court has also complained about
the time and money required to track user time, compute fees,
and collect the money.
The requirement for user fees, and the outrageous fee of
$.75 per minute, will create a barrier for public access to
court information. If the fee on the electronic dissemination
of court information is perceived as a nuisance and a costly
burden, who stands to benefit? It will, of course, make it more
difficult for citizens to obtain access to legal information
without using a commercial vendor. And by increasing the cost
of assembling a database, it will reduce competition among
vendors. This explains why older established vendors support
the fee. But the courts need to design information access
policies for the public, including both the members of the bar
and the many non-lawyers who want access to judicial opinions.
Indeed, since everyone is expected to obey the law, and everyone
is also presumed to know the law, it is inappropriate for the
government to charge high prices for access to the law.
Congress should repeal the current statutory requirement that
courts charge fees for access to court information, and
excessive fees should be prohibited.
It is also time to do much more. Congress should address
the fundamental problem of "who owns the law." A democracy
should not allow one firm, West Publishing, to "own" and control
access to the law. Congress should require the federal courts
to create a public domain system of citation and a public domain
database of court opinions, so that the law will truly become
public.
There is very broad support for enhanced public access to
government information. Indeed, persons with diverse views
about the role of the government, such as Ralph Nader, Speaker
Newt Gingrich, Chief Judge Richard Posner and Vice President
Albert Gore, conservative groups such as the Progress and
Freedom Foundation, and mainstream organizations such as the
American Library Association, have all been eloquent about the
need to give citizens better access to government information.
Congress should also investigate the very serious issue of
federal judges accepting lavish vacations and other gifts from
West Publishing, a firm that appears to benefit in many ways
from special treatment by the courts. On March 5, 1995 the
Minneapolis Star Tribune published an extensive article that
detailed expensive trips taken by federal judges (including
seven members of the Supreme Court) to locations such as the
Bahamas, the Virgin Islands and Hawaii, as well as stays in
luxury hotels in New York City and California, with
entertainment, sporting events, and other expenses paid for by
West Publishing. One judge (the only one to report the dollar
value of the trips) reported $7,700 in expenses for a three day
trip to Los Angeles. Many of these trips were in connection
with an annual $15,000 prize (the "Devitt Award") to federal
judges that West offers. It is unseemly for the federal
judiciary to accept such largess from any commercial concern,
and it is particularly unseemly to accept these expensive
benefits from a firm such as West Publishing, which has
extensive business dealings with the court itself, and which is
a frequent litigator of its broad copyright claims.
Thank you for your attention to these matters.
Sincerely,
James Love
Director, Taxpayer Assets Project
P.O. Box 19367, Washington, DC 20036
202/387-8030; fax: 202/234-5176
Internet: love@tap.org
I am attaching a copy of the January 3, 1995 Administrative
Order by the Seventh Circuit Court on the issue of fees for
court information.
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THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
Chicago, Illinois 60604
January 3, 1995
Chief Judge Richard A. Posner
Circuit Judge Walter J. Cummings
Circuit Judge John L. Coffey
Circuit Judge Joel M. Flaum
Circuit Judge Frank H. Easterbrook
Circuit Judge Kenneth F. Ripple
Circuit Judge Daniel A. Manion
Circuit Judge Michael S. Kanne
Circuit Judge Ilana Diamond Rovner
IN THE MATTER OF PUBLIC ACCESS TO THE SEVENTH CIRCUIT BULLETIN
BOARD SYSTEM (BBS)
ADMINISTRATIVE ORDER
The Judicial Conference of the United States has recently
provided for a fee of $1.00 per minute for electronic public
access unless the court exempts users.
The Seventh Circuit Bulletin Board System (BBS) was
established in 1990. It contains all of the court's open
dockets, closed dockets back to 1988, slip opinions since
January of 1990, the Federal and Circuit Rules, the
Practitioner's Handbook, special announcements such as problem
areas in appellate practice, and job openings such as bankruptcy
judge and federal defender vacancies. The system is run on
three 286 machines which would not otherwise be utilized by the
courts as all judges and staff have more advanced machines. The
total cost of the modems and software was $730. The BBS is set
up with three lines and can be accessed by judges, staff, and
anyone who signs onto the system. These telephone lines have a
monthly charge of $13 for each line. The system requires about
two to three minutes of personnel time to monitor each day. The
BBS has about 850 calls a month, of which an estimated 85 per
cent are nongovernmental users. The nongovernmental users are
on the system for about an average of 900 minutes per month
which would result in annual charges to them of $10,800, if they
were billed.
The judges of this court frequently advise counsel of the
need to check the docket, the record, and recent opinions so
that the judges will have the benefit of accurate research. It
is in our best interest that lawyers frequently check the docket
in their appeal and check for recent opinions on point which may
not have been published or reached the private computerized
legal research systems. It is imperative that attorneys have
accurate and up-to-date information.
If attorneys have to pay for computerized court
information, they will revert to calling deputy clerks for free
information as they have in the past. They will inquire by
phone or in-person rather than use a computer to check whether a
certain appeal has been decided, whether their pleading or brief
has been received, whether there has been a ruling on a motion,
how many copies of a motion must be filed, etc. Currently,
users are encouraged to use their computer rather than calling a
deputy clerk. The $468 that we pay annually for the computer
telephone lines equals about 20 hours of deputy clerk time.
Nongovernmental users annually use the BBS for 180 hours. If
they did not use the BBS because of the fees, but called the
clerk's office, there would be an exponential growth in deputy
clerk time responding to inquiries. Simply put, usage of the
BBS not only saves the time of attorneys and parties, but it
drastically reduces staff time answering inquiries.
Currently, an attorney who has never used the BBS can dial
in, register, and obtain current information on her or his case.
Under the fee system, the new user would have to make
arrangements with the San Antonio headquarters for payment and
issuance of a password and then be eligible to use the system.
Of course, any snafus or disputes over billing would result in
additional delays. About 60 per cent of our BBS users call less
than three times a month. About 50 per cent only use it once a
month. Users constantly change as some attorneys only have one
pending appeal.
Charging a fee would also add to the workload of the court
staff in monitoring the new billing system as well as in
responding to the additional telephone and in-person information
requests from those who either did not want to pay the $1.00 per
minute charge or could not register to use the system to obtain
the information that they would need. This would be
particularly true of sole practitioners and small firm lawyers
who do not have a regular federal practice.
Charging a fee for this previously free public information
amounts to a confiscatory tax on public information. If we had
charged nongovernmental users a fee during the last year, they
would have paid $10,800. When compared with the costs to the
court of about $468 per year, it is obvious that such a charge
is not a user fee, but a tax on previously free court
information.
In addition charging such a fee raises serious questions as
to whether the courts are dissuading the many new computer
services that have recently started to compete with the large
companies which have traditionally provided the lawyers with
legal research materials. According to reports in the December,
1994 issue of American Bar Association Journal at pp. 38-39, the
Antitrust Division of the Department of Justice is looking at
barriers to entry in the computer-assisted legal research
market. The Department is looking for ways to improve public
access to federal court opinions. Our system has no barriers,
encourages public access, and saves the government money. A fee
system will cost more than the current nonfee system.
THEREFORE, the United States Court of Appeals for the
Seventh Circuit exempts users of its system from paying any fee.
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