Federal Circuit Holding on PACER Access

Many are talking about the opinion released yesterday by the Federal Circuit holding that existing PACER fees are not "reasonable fees." See 28 U.S.C. §  1913. While this statute and this opinion of course do not apply to the military justice system, one should ask whether the transparency concerns that motivate it also militate in favor of greater online access of CAAF and CCA dockets. 

Consider Congress's stated purpose in the 2002 "E-Government Act": “[t]o enhance the management and promotion of electronic Government services and processes,” in part by requiring use of “Internet-based information technology to enhance citizen access to Government information and services.” 116 Stat. 2899. As the Federal Circuit wrote in yesterday's opinion, "[T]he First Amendment stakes here are high.... If large swaths of the public cannot afford the fees required to access court records, it will diminish the public’s ability 'to participate in and serve as a check upon the judicial process—an essential component in our structure of self-government.' Globe Newspaper Co. v. Superior Court for Norfolk Cty., 457 U.S. 596, 606 (1982)." NVLSP v. United States, Fed. Cir. No 19-1081 (Aug. 6, 2020).

​The same is equally true with the public's role in the participation in and check on the justice system of its military. Indeed, one might argue that the public checking function is more important in military justice. On the one hand, a lawless military presents a greater threat to public safety than mere police and judicial process; on the other hand, a military that can compel participation in it by young adults must justify its imposition of discipline and punishment as reasonable and fair to the public from which it draws those young adults.

Moreover, the Military Justice Act of 2016 states: 

“The Secretary of Defense shall prescribe uniform standards and criteria for conduct of each of the
following functions at all stages of the military justice system, including pretrial, trial, post-trial, and appellate processes, using, insofar as practicable, the best practices of Federal and State courts:
...
(4) Facilitation of access to docket information, filings, and records, taking into consideration
restrictions appropriate to judicial proceedings and military records.” 10 U.S.C. 940a.

Isn't online docket access a federal "best practice?"

Brenner Fissell

EIC