One of the fundamental underpinnings of our judicial system is that transparency leads to a fairer and more just legal process.
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A couple of weeks ago, a client asked me to pull some court records related to a matter my client had in a jurisdiction in which I do not practice. In both New York and New Jersey, the states in which I practice, most court records are free to retrieve online — for lawyers and the public alike. I expected this would be the case in this other forum, but as it turns out, this other state court charged a ton of money to retrieve the documents. I am familiar with how the federal system charges money to access federal court records through PACER, but I did not know that some state courts also charge significant sums for court records. In my opinion, all court records should be free to access by lawyers and the public alike for a number of reasons.
One of the fundamental underpinnings of our judicial system is that transparency leads to a fairer and more just legal process. As the namesake of my alma mater, Justice Louis D. Brandeis once said, “sunlight is the best disinfectant,” and our legal system flourishes when people have easy access to information. For this reason, court proceedings are generally open to the public and matters are not subject to sealing orders unless there is a compelling reason for this.
However, accessing information about court proceedings can be difficult if there is a paywall that prevents people from acquiring such information for free. Although the court system may only charge a modest sum per page, this can add up fast if parties wish to review multiple documents related to a proceeding. Access costs might not seem like a substantial amount of money to lawyers and law firms, many of which might get reimbursed for access costs from their clients. However, pro se parties, smaller nonprofits, and some journalists might not have deep pockets to scour certain judicial proceedings, and having a paywall can hurt the legal system by impeding their access to justice.
Some proponents of paying for court records may point out that such expenses help fund the judicial system, which is a public good. Most lawyers understand that many courts are understaffed and under-resourced, and providing the judicial system with additional revenue can help courts operate more effectively and provide better justice for everyone involved. However, the judicial system can access additional funds in many other ways. Lawmakers can allocate more resources, and the judiciary can charge additional fees for filings and other services. Putting court records behind a paywall seems to create more harm than the good caused by generating revenue for the judiciary.
Other proponents of paying for court records might believe that this expense puts a needed barrier between the public and those seeking to access potentially sensitive documents. Of course, it is true that people may wish that court documents be kept private due to the often damaging information contained in such records. Indeed, it is relatively easy for the public to access documents containing private information such as bankruptcy petitions, criminal histories, and the like. Having a paywall might separate those who have a genuine need for legal documents and those who are just looking for dirt on parties to litigation.
However, people should understand that if they are part of the legal process, information concerning court proceedings will be made pubic. Courts can restrict access to highly sensitive information, and in jurisdictions in which I practice, family court documents and other records are difficult to review online or otherwise. However, the judiciary should always defer to open access whenever this is possible.
I know there has been some efforts in recent years to make federal court records on PACER free for everyone, but movements should also exist to make state court records free. Judiciaries should consider how paywalls to obtain court records hurt transparency in the judiciary and question whether the benefits of a paywall are worth the harms.
Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothman.law.
