Federal Court Cases Removed from Public Computer Access

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Numerous case files have been removed from the U.S. federal courts’ online public access system, including archived bankruptcy cases in Orange County’s jurisdiction, court officials have quietly disclosed.

A brief announcement two weeks ago, which didn’t explain why the records disappeared, came as a surprise to attorneys and members of the public, including journalists, who use the files.

It also apparently surprised the federal courts’ own public affairs staff, who, a spokesman said, weren’t notified until Tuesday, after Voice of OC and at least one other news organization began asking questions.

The deletions, which took place on Aug. 10, affect closed cases filed as recently as 2012 in the federal appeals court in Washington, D.C., according to a brief notice from the court document service, known as PACER.

Other removed files include federal bankruptcy cases in the Central District of California before May 2001, as well as appeals court cases for the 2nd, 7th, 11th and Federal districts in more recent years.

The files are no longer available online because PACER is being prepared to upgrade to a newer “NextGen” system, said Charlie Hall, a spokesman for the Administrative Office of the U.S. Courts, which runs the PACER system.

The bankruptcy court and four courts of appeal had been using a much older system than the rest of the federal courts, and their files weren’t compatible with the new system, Hall said.

It’s unclear whether the administrative office analyzed how much it would cost to transfer the cases into the new system.  Hall said he would follow up on the question. It also was unknown who made the decision to remove the incompatible files.

Paper copies of the now-removed records can be obtained from individual courts, according to Hall, though the fees and time delays for that process are unclear.

Terry Nafisi, district court executive for the Central District of California, didn’t return messages through her assistant seeking comment.

The Central District serves about 18 million residents of Los Angeles, Orange, Riverside, San Bernardino, San Luis Obispo, Santa Barbara and Ventura counties. Its bankruptcy court is the largest in the United States.

The online system, known as PACER, allows users to review case histories and download court filings and rulings. PACER is often used by attorneys, journalists and members of the public to read the raw documents that make up a court case.

Much of the recent confusion stemmed from a lack of explanation about the missing records.

The courts’ online notice doesn’t explain the move, instead directing those seeking more information to “please contact the court directly.”

Journalists across the country took to Twitter to try and figure out what had happened.

Adam Liptak, the U.S. Supreme Court reporter for The New York Times, highlighted the announcement in a tweet on Saturday:

A Voice of OC reporter then asked the Central District court about the deletion over Twitter, with no response as of Tuesday.

Meanwhile, Massachusetts-based freelance journalist John Hawkinson tweeted that the clerk for the 2nd District Court of Appeals told him the problem lies with a system upgrade.

By Tuesday, the records removal started to gain national media attention, with coverage from The Washington Post, Wall Street Journal, National Law JournalArs Technica and others.

The move has attracted criticism, including from Techdirt editor Mike Masnick.

“Now, there have always been some cases not on PACER, but to actively start removing a bunch of cases, including many that are fairly recent ([Court of Appeals for the Federal Circuit] cases from just two years ago?!?) seems ridiculous and excessive,” Masnick wrote in a blog post.

Before the court cited compatibility issues on Tuesday, much of the speculation centered on storage space.

But digital storage has become increasingly affordable over time, with costs now dropping as low as 3 cents per gigabyte, an amount of data that can hold thousands of images.

The PACER system is based in San Antonio, Texas and is run by the Administrative Office of the U.S. Courts.

The system has attracted heated criticism from open data advocates in the past over its fees; at 10 cents per page downloaded, 1,000 pages of documents would cost $100.

“As many have noted, this almost certainly violates the law concerning PACER, which says that the Judicial Conference can only ‘prescribe reasonable fees… to reimburse expenses incurred in providing these services.’” Masnick wrote, referring to a section of federal law titled “Court Fees for Electronic Access to Information.”

“And yet the fees go way, way beyond what’s needed to maintain the (again, horrible) system which they refuse to update,” Masnick added.

The court administration’s spokesman, meanwhile, pointed out that fees are waived if less than $15 is accrued in a quarter.  Most users of the system, Hall said, pay nothing.

As for PACER’s finances, Hall said a line-item budget was not available.

For a general approximation, he pointed to the federal Judiciary Information Technology Fund budget, which shows $155 million in revenues from “proceeds from sale of property.”

2012 analysis by California Watch found that the fee revenues from PACER were five times the cost of running the system.

And the system ran a budget surplus of about $150 million, according to a 2009 New York Times article.

Some legal advocates, meanwhile, say they’re dismayed by the recent removal of files and how it was handled.

“If we had known about it in advance maybe we could have done something to target these documents and archive them publicly,” UC Berkeley assistant professor Brian Carver told the Washington Post.

“It was really an announcement of an accomplished feat — we weren’t told until after this deed was already done.”

You can reach Nick Gerda at ngerda@gmail.com, and follow him on Twitter: @nicholasgerda.

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