U.S. Sen. Joe Lieberman of Connecticut has asked the policy body of the federal judiciary why it continues to charge the public and lawyers for access to electronically filed documents and whether enough is being done to protect the personal data collected by courts.
The senator, who is head of the Homeland Security and Governmental Affairs Committee, expressed concern in a Feb. 27 letter that the federal judiciary had a $150 million surplus in its technology fund as of fiscal year 2006 yet continues to charge the public and lawyers 8 cents per page for access to documents.
"While charging for access was initially required, Section 205(e) of the E-Government Act changed a provision of the Judicial Appropriation Act of 2002 (28 U.S.C. 1913) so that courts 'may, to the extent necessary' instead of 'shall' charge fees 'for access to information available through automatic data processing equipment," Lieberman wrote.
The letter was directed to U.S. District Judge Lee H. Rosenthal of the Southern District of Texas in Houston, who is chair of the Rules Committee of the Judicial Conference of the United States, the federal judiciary's policy-making arm.
"We do plan to respond," said Karen Redmond, spokeswoman for the Administrative Office of the Courts, but she declined to discuss the issues raised by Lieberman.
The senator's query comes just as the Judicial Conference is about to hold its semi-annual meeting on March 17 in Washington.
The Public Access to Court Electronic Records (PACER) system provides nationwide access to most records in district courts, including briefs, motions and judicial rulings. The courts charge a fee to the public for time online and 8 cents per page for documents downloaded from the system.
By 2004, more than 15 million cases were on the electronic filing system and 100,000 lawyers had filed documents over the Internet to the courts. Many of the records included Social Security numbers, dates of birth, phone numbers and women's maiden names, which could be used for identity theft. That material was to be stripped out.
Carl Malamud, an Internet radio pioneer, began public.resource.org in 2007 to make free government information available on the Internet. He has also turned his eye to the PACER system. "For the past six months we have conducted an audit of 32 district courts over the secrecy issue," he said last week.
He said the group has found plenty of violations of the requirement that lawyers strip out confidential information before filing and that the courts do not screen them. "The initial positions of clerks is that it is the responsibility of the attorney to make sure the data is clean," Malamud said. "Our point is that mistakes happen."
Malamud said his organization has found thousands of privacy violations in scanning documents, and he wants to see the courts more involved in screening. All of the 32 federal district courts around the country have begun to respond, he said, but he promised to continue to press the issue.
Malamud drew Lieberman's attention and was cited in Lieberman's letter to the court.
"I have concerns that not enough has been done to protect personal information contained in publicly available court rulings, potentially violating another provision of the E-Government Act," Lieberman wrote. "Given the sensitivity of this information and the potential for [identity] theft or worse, I would like the court to review the steps they take to ensure this information is protected and report to the committee on how this provision has been implemented as we work to increase public access to court records."