In what was hailed as a major legal victory to increase transparency and public access to America's courts, a federal judge in Washington, D.C., signed off on a $125 million settlement to end a class action lawsuit accusing the federal courts of overcharging Americans for access to federal court documents and records.
However, the settlement, while large, marks just a victory in a long-running fight by reformers and public transparency advocates to move courts in Chicago and throughout the country into the 21st Century, and force the courts to open up greater access by the public to the documents and records of proceedings which legally are considered open to the public.
"Of course, all court proceedings are nominally considered to be public and open to anyone," said David Loy, legal director for the First Amendment Coalition, based in San Rafael.
Tim Kowal
| Kowal Law Group
"But on the other hand, there's just not enough hours in the day or people available to be in every courtroom, every day. So the larger issue is: What is the public's ability to access and understand what happens in court?"
On March 20, U.S. District Judge Paul Friedman granted final approval to the settlement in the lawsuit over fees charged to users of the federal judiciary's online court filing and records access service, generally known as PACER. The settlement will set aside $100 million to pay reimbursements to anyone who used the PACER system from April 2010 to May 2018. Attorneys will also be paid $25 million in fees under the settlement.
The settlement brings to an end a court fight that began in 2016, when three public interest advocacy groups, the National Veterans Legal Services Program, the National Consumer Law Center and the Alliance for Justice filed suit against the federal judiciary. The lawsuit asserted the federal courts overcharged people using the PACER system to access court records, asserting the fees were not in line with the actual costs of providing the documents. They said this allowed the federal courts to turn PACER into a moneymaker, while essentially blocking interested members of the public from monitoring proceedings, rulings and other events in their federal courts.
According to a report published by Reuters, attorney Deepak Gupta, of the firm of Gupta Wessler, who represented the plaintiffs in the action, said he hoped the settlement would "usher in a new era of transparency and access to information in the federal courts going forward."
In separate comments on a tweet, Gupta added: "Now Congress should take the next step: Bring down the paywall for good."
'Left guessing'
However, even if the public should ultimately achieve that level of free, remote access to nearly all federal court filings, across the country, the ability of the public to monitor court proceedings and obtain records in their local and state courts remains far more restricted even than those successfully challenged in the PACER lawsuit.
Across the country, states and local court jurisdictions operate amid a patchwork of public access rules and ability, even within states.
In California, for instance, the San Francisco County and Sacramento County superior courts make a variety of court records - though not all - available online.
No such remote access, however, is available through nearly all other state court systems in California, including the country's largest unified court system, the Los Angeles County Superior Court.
In Illinois, in the Cook County Circuit Court - the country's second largest unified court system, based in Chicago - officials have repeatedly pledged to modernize and digitize court files.
Despite these efforts, however, Cook County's courts, like those in L.A. and elsewhere in California, have steadfastly refused to grant the public remote access to any court files or records.
Lawyers who operate within the court system enjoy such access, demonstrating the court has the ability to do so.
However, in Chicago, as in L.A. and elsewhere in much of the Golden State, the public, however, must still travel to physical courthouses to access records about cases and criminal charges.
Those records, however, still may not tell the tale of what happened in court. Judges in many court systems regularly issue written orders little to no explanation for their rulings, merely beginning the orders with the phrase, "For the reasons stated on the record..."
While the judge ruled for opponents of the referendum, her written order provided no explanation as to why, other than the nebulous reference to the court record.
"Like the parties, we are left guessing as to the bases for the circuit court’s ruling because the lower court gave no reasons for its ruling," the appeals court wrote in the decision reversing the lower court's order.
And for interested observers, attempting to piece together what actually happened in a court hearing can become a laborious and expensive task - if not impossible.
Official court transcripts, for instance, can be prohibitively expensive.
While the PACER lawsuit was triggered by fees of 10 cents per page, capped at $3 per record, costs for official court transcripts can often climb well into the thousands of dollars, ostensibly to pay the court reporters who recorded the proceedings and must transcribe them onto paper or PDFs.
Typically, transcripts cost anywhere from $1 to $7 per page to produce.
And the availability of such records is jeopardized by an ongoing nationwide shortage of court reporters.
SB662
The effect of that shortage has been particularly felt In California, said Tim Kowal, an appellate attorney and co-host of the California Appellate Law Podcast, jeopardizing the ability to keep official court records of proceedings.
According to the famous Ducker Report commissioned by the National Court Reporters Association in 2014, for every 1,120 traditional stenographic court reporters who retire, only 200 stenographers are expected to replace them, costing the profession more than 900 certified court reporters annually. By that math, by 2028, the number of court reporters available to cover court proceedings is expected to decrease by at least half.
The NCRA and other court reporters groups have disputed that projection, saying the decline is not as sharp as estimated.
The California Judicial Council estimates the state's courts only employ about 1,200 full time equivalent court reporters. The Judicial Council says that is about 650 short of what the state's courts need to meet "minimum requirements" for ensuring court proceedings are properly recorded and access to justice is maintained.
By whatever measure, the decline is real and undeniable, Kowal said.
"You're never going to fill the gap," said Kowal. "It's only going to continue growing."
With this in mind, lawmakers and court officials in California and elsewhere have sought out solutions. In California, the Judicial Council has noted it has stepped up efforts to recruit new court reporters, offering an array of financial incentives to entice court reporters into the profession.
But the Judicial Council also has stepped forward to support legislation to allow courts greater ability to use technology to fill the gap.
In California, state law does not allow electronic recording of civil court proceedings in place of a stenographic court reporter.
Earlier this year, state lawmakers sought to advance legislation, known as SB662, that would have allowed for the expanded use of electronic recording of civil court proceedings. The legislation was explicitly endorsed by the Judicial Council.
"Certified Shorthand Reporters are the preferred way to provide a record; however, the number of court reporters is not keeping pace with the need. This threatens access to justice for all Californians, especially those who cannot afford to pay thousands of dollars for their own private court reporter when the court does not have enough court reporters to staff civil courtrooms," the Judicial Council said in a Jan. 8 letter to state senators.
The legislation, however, was killed, in large part because of opposition from government worker unions, who represent the state's court reporters. They celebrated the demise of SB662, claiming the legislation would have "affected the accuracy of the record" in California courts.
Kowal agreed that court records generated by human stenographic court reporters remain "the gold standard," particularly on appeal, where a lack of accurate official record from the lower court can doom efforts to overturn a contrary ruling.
While digital recording systems, in principle, only rely on someone to "press record," in practice, they can fail to fully record all court proceedings. While human court reporters, for instance, can tell judges, attorneys and others when someone speaking in court cannot be heard or understood, such shortcomings may not be known in electronic court recordings until later.
But like the Judicial Council, Kowal said courts are increasingly turning to technology to ensure a record of some kind still can be kept.
In most other states, such technology is in use to varying degrees. In Cook County, Illinois, for instance, audio recordings can be used in various kinds of court proceedings. The public, however, is blocked by Illinois state court rules from accessing audio recordings that may exist, without first obtaining an official written transcript.
Meanwhile, in the state of Indiana, that state's Supreme Court has gone further still, instituting a new rule in 2023 which explicitly requires all court proceedings to be recorded, whether or not a stenographic court reporter is present.
Further, in a notice to the public updated at the beginning of 2024, the Indiana Supreme Court reiterated that its rule "starts from the presumption of open Public Access to Court Records," and states that most court records should be made available to the public, noting denying access to those records "could compromise the judiciary's role in society, inhibit accountability, and endanger public safety."
The Indiana Supreme Court bulletin specifically states those records should include "audio or video recordings of court proceedings made by a Court Reporter."
Known as Rule 74, the new rule represents a compromise. An initial version of the rule would have further prohibited courts from using traditional stenographic court reporters entirely. The proposal generated a firestorm of controversy, not only from court reporters and their professional associations, but from attorneys and others in the legal community.
A spokesperson for the Indiana Supreme Court did not respond to questions from The Record about implementation of Rule 74.
Kowal said he believes the arguments against electronic court reporting weaken as the number of traditional court reporters continue to diminish.
'Without data, you just don't know'
And Kowal and Loy said another consideration also belongs in the debate: The right of the public to know what is happening in their courts.
Kowal noted that traditionally, the public's right to access has been satisfied by simply keeping courtrooms open and allowing anyone to sit in on court proceedings.
"That satisfies the constitutional minimum," Kowal said.
But Kowal said that idea comes from a time when it was presumed that most court decisions that impacted people's lives happened in the courthouse down the street or in the next town over.
He said that principle becomes more problematic amid the rise of remote court proceedings - such as during the Covid period - and as more judges, presiding in courts perhaps hundreds or thousands of miles away, hand down decisions that impact the lives of millions.
While courts routinely focus on the need to ensure access to records for those directly involved in the cases, and for lawyers, in particular, Loy noted courts typically overlook the need under the Constitution to remain open and accountable to the public.
It is that idea that drove the First Amendment Coalition, together with the Reporters Committee for the Free Press and others to join on a brief filed in a federal appeals court in support of the lawsuit over PACER fees. Loy noted that brief predated his arrival at the FAC.
The RCFP did not respond to questions from The Record.
However, Loy said the rise of recording technology - and rapidly decreasing costs of using the tech and the records it produces - present the courts with the need to better balance the requirement to protect the courts' official record and the public's rights to transparency and access.
He noted appellate courts and state Supreme Courts routinely post audio recordings of official proceedings in their courts online, available for free.
But Loy said the public's interest in monitoring the courts don't begin and end with "high profile" appellate and supreme courts, but extends to lower courts, as well.
Loy said the ability of the "high profile courts" to post their proceedings for public review shows it is possible for courts to use recording technology to improve public access at little relative cost, and ensure judges are abiding by the law and Constitution, as well as acting judiciously.
High costs for court records - or a lack of publicly accessible records altogether - can make court proceedings "de facto invisible," Loy said.
"Most court proceedings aren't typically transcribed unless requested," Loy said. "And court reporters deserve to get paid fairly for their work.
"But the larger point is still valid: The problem is cost can be a barrier to the public's ability to monitor their judges and understand who is saying what in courtrooms. Without data, you just don't know."