Journalists get no exemption from fees, as an “unreasonable burden,” when they download electronic court documents. The 9th U.S. Circuit Court of Appeals said Thursday it had no jurisdiction to review the administrative decision of Judge James Ware in San Jose.
Two journalists working for the Bay Citizen in San Francisco sought the four-month fee waiver to conduct a research project to comb court filings to analyze the effectiveness of the court’s conflict-checking software. The software is used to help federal judges identify situations requiring their recusal.
The journalists, Jennifer Gollan and Shane Shifflett, argued it would be prohibitively expensive for their not-for-profit employer and Ware initially allowed the waiver.
But a week later Ware asked whether the waiver should be revoked on the ground they were members of the news media.
Bay Citizen later merged with the Center for Investigative Reporting and Ware ultimately rejected the exemption request.
The PACER system, Public Access to Court Electronic Records, allows the public to view federal trial, bankruptcy and appellate filings online. Congress authorized the program but required PACER to set user fees. To keep the system open to the public, Congress allowed exemptions if the fees would be an unreasonable burden and it allowed free access to anyone who goes directly to a court clerk’s office to use computer terminals. Documents cost 10-cents per page and 60-cents per minute on the PACER system. Judicial opinions are free.
Exemptions were for researchers, educators, not-for-profit groups and pro bono lawyers. But a 2012 policy notes courts should not exempt the media.
Judge Diarmuid O’Scannlain held that the denial by Ware was an administrative action and not a legal decision, thus the appeals court had no jurisdiction to interfere.
O’Scannlain added a separate note to point out “the elephant in the room” was that there is no place to go to challenge denial of a PACER fee exemption. He suggested it us up to Congress to decide whether to create an appellate review mechanism or leave it exclusively to district courts.
Gollan and Shifflett tried arguing this was a unconstitutional discrimination against the press. But O’Scannlain said the law does not allow supervisory oversight of administrative actions by district courts so he could not review the claim.
Case: In re: Application for Exemption from PACER, No. 12-16373