sunshine week 2021: OP-ED

Federal court records should be free and easy for the public to access. We're working on it.

By AMY KRISTIN SANDERS and RACHEL DAVIS MERSEY
University of Texas at Austin School of Journalism and Media

Despite all the attention being paid to social justice in our communities at the moment, it remains needlessly difficult to evaluate the federal courts and how they equitably — or inequitably — engage with people who appear before them.  

Consider a recent Reuters analysis of more than 500 federal court decisions on “qualified immunity,” a legal doctrine that shields police officers accused of excessive force from liability. The extensive reporting, which involved computer analysis and manual review of cases, revealed stark differences in how police-misconduct cases were handled in Texas compared with California and other parts of the United States. But even the experienced investigative journalists behind this work acknowledge that it is “impossible to build a complete list of excessive force, qualified immunity cases from [federal] district court data.”

What we know from this example and others is that systematic study of court records — by journalists, legal aid groups and even everyday citizens — has the potential to uncover the successes and failings of our nation’s justice system.

Yet the records aren’t kept in a way that makes that inexpensive or easy.

Court records, unlike other federal government records, are locked behind a paywall. It’ll cost you 10 cents per page to read them online — or even just to view your search results. That means to engage in meaningful oversight, journalists, advocacy groups or the public would need to review thousands of records, at an unsustainable cost of time and money. 

Major legal research databases, like Westlaw, which is owned by Reuters’ parent company, do exist. Although they collect some federal court records, they, too, carry a hefty price tag — unless you’re affiliated with a university. 

Second, it has been joked that navigating the antiquated system for accessing the records — known as PACER — requires more luck than money. The system’s cumbersome nature and outdated architecture are hardly user-friendly. Searches often return information that is of little value — but you pay for the results anyway.

As our nation’s watchdogs, journalists regularly engage in government oversight, ensuring the three branches of government act in the public’s interest. However, relentless budget cuts and staff reductions have made this kind of public-interest, watchdog journalism less common. For journalists keeping an eye on our court system, the work is expensive and time consuming, plus, it requires significant expertise. 

It doesn’t have to be this way. We can build a system that permits free and open access to court records, allowing journalists and others the ability to examine these documents just like they can examine reports from the Centers for Disease Control and Prevention, Congressional roll-call votes and nearly every other executive or legislative record.

With a $5 million cooperative agreement from the National Science Foundation, our team is creating an Open Knowledge Network to increase transparency around court records. Our system, called SCALES, will allow users to engage in natural-language searches of the records — the same way you use Google to search the internet.

With the help of SCALES, journalists, attorneys, scholars — and even judges — can quickly answer important questions about the justice system. The capacity to analyze large amounts of data holds enormous potential, but it requires being able to access court records without paying 10 cents a page.

Making public records free makes sense. Assembling information and disseminating it to the public is a core function of a democratic government. Journalists, attorneys and researchers regularly rely on federal records to hold the government accountable, outline legal strategies and evaluate policy implementation, 

As news organizations around the country commemorate Sunshine Week, a nationwide initiative focused on highlighting the importance of open government and public records, we urge you to contact your federal lawmakers to voice your support for court records that are open and free to access. Tell them you support the Open Courts Act, a bipartisan bill that would eliminate access fees and align the judiciary with the rest of the federal government. 

It’s time we let a little sunshine into the federal courts.

Amy Kristin Sanders is an associate professor in the University of Texas at Austin School of Journalism and Media and an expert on freedom of information and government transparency. Rachel Davis Mersey is the associate dean of research for the Moody College of Communication at the University of Texas at Austin. Both are former journalists. The views expressed are those of the authors and do not reflect the official policy or position of the National Science Foundation.