If you don’t pay attention to information technology in the federal judiciary, you don’t yet realize that the flagship, called PACER and CM/ECF, just hit an iceberg. PACER is public records system that is integrated with the federal judiciary’s internal case management and electronic case files (CM/ECF) system. For a relatively small fee, PACER allows anyone, anywhere, at anytime electronic access to virtually all documents filed with the federal trial courts and courts of appeal. At least that was so until August 11, 2014.
The Administrative Office announced in a one paragraph bombshell that closed cases in four courts of appeals and the bankruptcy court in Los Angeles would no longer be available electronically for cases that were filed prior to various dates. The notice reads like this:
On August 11, a change was made to the PACER architecture in preparation for the implementation of the next generation of the judiciary’s Case Management/Electronic Case Files (CM/ECF) system. NextGen CM/ECF replaces the older CM/ECF system and provides improvements for users, including a single sign-on for PACER and NextGen CM/ECF. As a result of these architectural changes, the locally developed legacy case management systems in the five courts listed below are now incompatible with PACER; therefore, the judiciary is no longer able to provide electronic access to the closed cases on those systems. The dockets and documents in these cases can be obtained directly from the relevant court. All open cases, as well as any new filings, will continue to be available on PACER.
U.S. Court of Appeals for the 2nd Circuit Cases filed prior to January 1, 2010
U.S. Court of Appeals for the 7th Circuit Cases filed prior to January 1, 2008
U.S. Court of Appeals for the 11th Circuit Cases filed prior to January 1, 2010
U.S. Court of Appeals for the Federal Circuit Cases filed prior to March 1, 2012
U.S. Bankruptcy Court for the Central District of California Cases filed prior to May 1, 2001.
Please contact the court directly to obtain copies of documents and dockets in the above cases. Contact information for each court is available on the Court Locator page.
For thoughtful and in-depth articles on this fiasco, see Jeff John Roberts, Why the federal court record system PACER is so broken, and how to fix it, GIGAOM (August 27, 2014) and Nick Gerda, Federal Court Cases Removed from Public Computer Access, Voice of OC (August 27, 2014). While I think those on the “outside” are far too critical as I shall discuss briefly in a moment, these articles are good starters for anyone interested in the topic.
So, what does some old senior district judge from flyover country think? Here is what I think:
1. Fix the screw up now. Upload the old cases. I know it can be done because years ago our court did it. It was an unbelievable pain in the butt, but we did it. Drop the “legacy” system excuse. It will take a lot of work and money, but there is no way to spin this manure into gold. It cannot be ignored. Too many of our citizens have become too dependent upon these records to tell them to kiss off, particularly in a snotty one paragraph missive that was apparently provided as an afterthought.
2. If you work for the government, then you know the phrase “lessons learned.” How did this happen? Blame, or at least responsibility, should be fixed on someone or some group. Since we never fire anyone, the least we can do is to figure out how this happened and when it was discovered. The judiciary should then make those findings available publicly, and it should do it sooner rather than later.
3. For those who live in the IT world outside the judiciary, it is fashionable to trash PACER and CM/ECF. The problem is that those digit-heads are clueless when they get beyond slot A fits into slot B. Of course, in a perfect world these systems would be elegant and the cost to the public would be zero. But we don’t live in the pristine world of the computer geeks. They know absolutely nothing about managing a large organization, and that is particularly true for an organization that supports judges who have jobs for life under the Constitution. As a consequence of this real life illiteracy, these outsiders have no clue what a triumph these systems are from a variety of perspectives such as internal management of cases to external judicial transparency. The will and skill necessary to convince the internal stakeholders (judges and lawyers) to adopt the concept of these systems (to let go of paper) and then construct a dual public/internal system with few glitches is a major milestone in the annals of good government.* This was a truly a monumental achievement. For my money, PACER and CM/ECF should be here to stay despite the present debacle.
*For example, compare the disastrous implementation of the health care web sites with the relatively trouble-free implementation of PACER and CM/ECF.