Congressional Record, Volume 166 Issue 207 (Tuesday, December 8, 2020)

[Congressional Record Volume 166, Number 207 (Tuesday, December 8, 2020)]
[House]
[Pages H7015-H7021]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

OPEN COURTS ACT OF 2020

Mr. JOHNSON of Georgia. Mr. Speaker, I move to suspend the rules and
pass the bill (H.R. 8235) to provide for the modernization of
electronic case management systems, and for other purposes, as amended.
The Clerk read the title of the bill.
The text of the bill is as follows:

H.R. 8235

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SEC. 1. SHORT TITLE.

This Act may be cited as the ``Open Courts Act of 2020''.

SEC. 2. MODERNIZATION OF ELECTRONIC COURT RECORDS SYSTEMS.

(a) Consolidation.--Not later than the date specified in
subsection (e), as modified by any adjustments certified
pursuant to section 6(b), the Director of the Administrative
Office of the United States Courts, in coordination with the
Administrator of General Services, shall develop, deliver,
and sustain, consistent with the requirements of

[[Page H7016]]

this section and section 3, one system for all public court
records.
(b) Requirements of System.--The system described in
subsection (a) shall comply with the following requirements:
(1) The system shall provide search functions, developed in
coordination with the Administrator of General Services, for
use by the public and by parties before the court.
(2) The system shall make public court records
automatically accessible to the public upon receipt of such
records.
(3) Any information made available through a website
established pursuant to section 205 of the E-Government Act
of 2002 shall be included in the system.
(4) Any website for the system shall substantially comply
with the requirements under subsections (b) and (c) of
section 205 of the E-Government Act of 2002.
(5) To the extent practicable, external websites shall be
able to link to documents on the system. Each website
established pursuant to section 205 of the E-Government Act
of 2002 shall contain a link to the system.
(c) Data Standards.--
(1) Establishment of data standards.--The Director of the
Administrative Office of the United States Courts, in
coordination with the Administrator of General Services and
the Archivist of the United States, shall establish data
standards for the system described in this section and
section 3.
(2) Requirements.--The data standards established under
paragraph (1) shall, to the extent reasonable and
practicable--
(A) incorporate widely accepted common data elements;
(B) incorporate a widely accepted, nonproprietary, full
text searchable, platform-independent computer-readable
format; and
(C) be capable of being continually upgraded as necessary.
(3) Deadlines.--Not later than 9 months after the date of
enactment of this Act, the Director of the Administrative
Office of the United States Courts shall issue guidance to
all Federal courts on the data standards established under
this section.
(d) Use of Technology.--In carrying out the duties under
subsection (a), the Director shall use modern technology in
order--
(1) to improve security, data accessibility, data quality,
affordability, and performance; and
(2) to minimize the burden on pro se litigants.
(e) Date Specified.--The date specified in this subsection
is January 1, 2025, unless the Administrator of General
Services certifies to Congress, by not later than 6 months
after the date of enactment of this Act, that an additional
period of time is required. If the Administrator so
certifies, the date specified in this subsection shall be a
date that is no later than January 1, 2026.
(f) Funds for Establishment, Operation, and Maintenance of
Modernized Court Records System.--
(1) Short term access fees to fund development and delivery
of modernized court records system.--Until the date specified
in subsection (e), to cover the costs of carrying out this
section and section 3 and pursuant to sections 1913, 1914,
1926, 1930, and 1932 of title 28, United States Code, the
Judicial Conference shall prescribe a progressive schedule of
reasonable additional fees for persons, other than government
agencies, who accrue fees for electronic access to
information under section 303 of Public Law 102-140 (28
U.S.C. 1913 note; 105 Stat. 807) in an amount of $6,000 or
greater in any quarter. Any such additional fees shall be
assessed on a progressive fee schedule according to the level
of use so that higher volume users are assessed higher fees.
(2) Pricing for high-volume, for-profit use.--
(A) In general.--Pursuant to sections 1913, 1914, 1926,
1930, and 1932 of title 28, United States Code, the Director
of the Administrative Office of the United States Courts, in
coordination with the Administrator of General Services and
the Office of Technology Transformation of the General
Services Administration, may prescribe a schedule of
reasonable fees for high-volume, for-profit public users of
the system described in this section and section 3, to
facilitate service-level agreements for maximum response
times, integrations, high availability, and service and
support.
(B) Fee requirements.--The schedule of fees described in
paragraph (1) shall be based on a determination of specific
and substantial need, and may not impair access to justice
and the public right of access to court records, restrain
innovation in the provision of legal services and access to
public court records, nor inhibit not for profit research of
the business of the Federal courts.
(3) Fees to fund operation and maintenance of modernized
court records system.--
(A) In general.--To cover the costs of carrying out this
Act, the Judicial Conference of the United States may, only
to the extent necessary, prescribe schedules of reasonable
user fees, pursuant to sections 1913, 1914, 1926, 1930, and
1932 of title 28, United States Code. Such fees shall be
based on the extent of use of the system described under this
section and section 3 as well as factors such as feasibility,
fairness to other users of the system, and efficacy, and may
not foreclose access to justice and the public right of
access to court records.
(B) Filing fees prohibited.--The Judicial Conference of the
United States may not prescribe filing fees to cover the cost
of the system described in this section and section 3 unless
the Judicial Conference determines that all other sources of
fees will not cover the costs of such system. Only after such
a determination and only to the extent necessary, the
Judicial Conference may prescribe schedules of progressive
filing fees under subparagraph (A). In addition to the
requirements of subparagraph (A), such filing fees--
(i) shall be based on factors to ensure that such schedules
are graduated and equitable, including the type of action and
claim for relief, the status of a filer, the amount of
damages demanded, the estimated complexity of the type of
action, and the interests of justice;
(ii) may be prescribed for the filing of a counterclaim;
(iii) shall not apply in the case of a pro se litigant or
litigant who certifies the litigant's financial hardship;
(iv) shall not be a basis for rejecting a filing or
otherwise denying a party seeking relief access to the courts
of the United States;
(v) shall be assessed according to schedules, not on a
case-by-case, ad hoc basis; and
(vi) shall not be greater than 15 percent of any other fees
associated with the filing.
(4) Use of funds.--
(A) Deposit fees.--All fees collected under this subsection
shall be deposited as offsetting collections to the Judiciary
Information Technology Fund pursuant to section 612(c)(1)(A)
of title 28, United States Code, to reimburse expenses
incurred in carrying out this section.
(B) Authorized uses of fees.--Amounts deposited to the
Judiciary Information Technology Fund pursuant to this
paragraph and not used to reimburse expenses incurred in
carrying out this section and section 3 may be used pursuant
to section 612(a) of title 28, United States Code.
(5) Interest of justice.--A court may waive any fee imposed
under paragraph (3) in the interest of justice upon motion.
(6) Effective date.--Paragraphs (2) and (3) shall take
effect on the date specified in subsection (e). Paragraph (1)
and section 303 of Public Law 102-140 (28 U.S.C. 1913 note;
105 Stat. 807) shall cease to have effect on that date.

SEC. 3. PUBLIC ACCESS TO ELECTRONIC COURT RECORDS SYSTEM
REQUIREMENT.

(a) In General.--Not later than the date specified in
section 2(e), and subject to any certification under section
6(b), the Director of the Administrative Office of the United
States Courts, in coordination with the Administrator of
General Services, shall make all materials in the system
described in section 2 and this section publicly accessible,
free of charge and without requiring registration.
(b) Use of Technology.--In providing public access under
subsection (a), the Director shall, in coordination with the
Administrator of General Services, use modern technology in
order--
(1) to improve security, data accessibility, quality, ease
of public access, affordability, and performance; and
(2) to minimize the burden on pro se litigants.
(c) Funding for Public Access to Modernized Electronic
Court Records System.--
(1) In general.--To cover any marginal costs of ensuring
the public accessibility, free of charge, of all materials in
the system in accordance with this section, the Judicial
Conference of the United States shall collect an annual fee
from Federal agencies equal to the Public Access to Court
Electronic Records access fees paid by those agencies in
2018, as adjusted for inflation. All fees collected under
this subsection shall be deposited as offsetting collections
to the Judiciary Information Technology Fund pursuant to
section 612(c)(1)(A) of title 28, United States Code, to
reimburse expenses incurred in providing services in
accordance with this section.
(2) Authorized uses of fees.--Amounts deposited to the
Judiciary Information Technology Fund pursuant to this
subsection and not used to reimburse expenses incurred in
carrying out this section may be used to reimburse expenses
incurred in carrying out section 2. Amounts not used to
reimburse expenses incurred in carrying out section 2 may be
used pursuant to section 612(a) of title 28, United States
Code.
(3) Effective date.--Paragraph (1) shall take effect
beginning on the date specified in section 2(e).

SEC. 4. ENSURING MODERN DEVELOPMENT STANDARDS.

(a) Industry Standards.--The system described in sections 2
and 3 shall be developed in accordance with industry
standards for the incremental development of new information
technology systems, including user-centered design, Agile
software development practices and procurement, and service-
oriented architecture.
(b) Analyses.--The Director of the Administrative Office of
the United States Courts shall, in cooperation with the
Administrator of General Services, conduct regular analyses
at each stage of system development to ensure that any
requirements--
(1) are consistent with this Act;
(2) meet the business needs of users of the system, the
public, and the judiciary; and
(3) comply with relevant statutes and rules, including
chapter 131 of title 28, United States Code (commonly known
as the ``Rules Enabling Act''), the Federal Rules of
Procedure, and local rules and orders of Federal courts.

[[Page H7017]]

(c) Initial Plan.--Not later than 6 months after the date
of enactment of this Act, the Director of the Administrative
Office of the United States Courts shall submit to Congress a
report with respect to its initial plan for development of
the system after consultation with the Office of Technology
Transformation Services of the General Services
Administration and the United States Digital Service, which
may include an analysis of the state of the system as of the
date of enactment of this Act, an approach for developing the
system consistent with sections 2 and 3 of this Act, and a
proposed timeline for development.
(d) Reports and Notice.--
(1) Reports.--
(A) In general.--Each quarter after the issuance of the
report described in subsection (c), the Director of the
Administrative Office of the United States Courts shall
report quarterly to the Committees on the Judiciary of the
House of Representatives and the Senate on progress of the
development of the system, improvements achieved, and risks
that arise (such as lack of funding source or lack of
technological solutions to meet the needs of this Act or
applicable statutes and rules). Such report shall include an
assessment of vendors' compliance with a quality assessment
surveillance plan, code quality, and whether the system is
meeting users' needs.
(B) System status.--Not later than 60 days after the end of
each fiscal year, the Comptroller General of the United
States shall report to Congress on the policies, goals,
performance, budget, contracts, fee proposals, and user fees
of the Administrative Office of the United States Courts,
including input from a cross-section of the nongovernmental
users and stakeholders, with respect to the system described
in sections 2 and 3 of this Act.
(2) Notice.--Not later than 6 months after the date of
enactment of this Act, and quarterly thereafter, the
Comptroller General of the United States shall notify
Congress that the Director of the Administrative Office of
the United States Courts has--
(A) produced additional usable functionality of the system
described under sections 2 and 3 of this Act;
(B) held live, publicly accessible demonstrations of
software in development; and
(C) allowed the Comptroller General or a designee to attend
all sprint reviews held during such 6 month or quarterly
period.

SEC. 5. REVIEW AND PUBLICATION OF USER FEES.

(a) Periodic Review.--The Judicial Conference of the United
States shall review any schedule of fees prescribed under
this Act 3 years after such schedule becomes effective and
every 3 years thereafter to ensure that the schedule meets
the requirement of this Act. If a fee schedule does not meet
such requirements, the Judicial Conference shall prescribe a
new schedule of fees pursuant to this section and submit the
new schedule of fees to Congress pursuant to this section.
(b) Fee Proposal and Comment Periods.--
(1) Public comment.--The Judicial Conference of the United
States shall publish any schedule of new fees or fee
adjustments, as authorized under this Act, in the Federal
Register and on the website of the United States Courts. The
Judicial Conference shall accept public comment on the
proposed fees for a period of not less than 60 days.
(2) Publication of final schedule of new fees or fee
adjustments.--After the period specified in paragraph (2),
the final schedule of new fees or fee adjustments shall be
published in the Federal Register and on the website of the
United States Courts along with an explanation of any changes
from the proposed schedule of new fees or fee adjustments.
(3) Congressional review period.--A schedule of fees set or
adjusted under paragraph (3) may not become effective--
(A) before the end of the 90-day period beginning on the
day after the date on which the Judicial Conference publishes
the schedule of new fees or fee adjustments under paragraph
(3); or
(B) if a law is enacted disapproving such fee.
(c) Study.--
(1) In general.--The Judicial Conference of the United
States shall periodically study the system described in
sections 2 and 3 of this Act in accordance with this section.
The study shall examine--
(A) the relative extent to which specific functions and
usage of the system are supported, directly or indirectly, by
fees, appropriations, and other sources of revenue; and
(B) whether, and to what extent, there are additional fees
of any kind that could be more appropriately imposed to
support the operations and maintenance of the system and
whether or not any such fees should or must be imposed by
statute or by judiciary regulation;
(C) whether, and to what extent, there are additional
appropriations that should be pursued that should be provided
to support the system in lieu of fees; and
(D) whether, and to what extent, there are other sources of
revenue that should be provided to support the system.
(2) Considerations.--In determining the appropriateness of
any fees, the Judicial Conference of the United States shall
consider the extent to which any such fees would--
(A) negatively or positively affect the administration of
justice;
(B) impose inappropriate burdens on access to justice by
litigants;
(C) relate to the relative impact of activities on system
costs;
(D) improve fairness to users;
(E) otherwise be fair or unfair to the public;
(F) be feasible to implement effectively; and
(G) generate meaningful revenue.
(3) Report.--Not later than 1 year after the date of
enactment of this Act, the Judicial Conference of the United
States shall submit to the Committees on the Judiciary of the
House of Representative and the Senate a report on the
conclusions of the study described under this section.
(4) Fee authority.--If the Judicial Conference of the
United States determines, pursuant to subsection (a), that
additional fees are reasonable and necessary to fund the
system described in sections 2 and 3, it may promulgate such
fees pursuant to section 2(f)(3)(A).
(5) Additional report.--Not less frequently than every 3
years, the Judicial Conference shall review the matters
described in this subsection and report any new findings to
Congress as described in this subsection. Any fees may be
adjusted pursuant to section 2(f)(3)(A).

SEC. 6. REPORTING AND CERTIFICATION TO CONGRESS ON FINANCES.

(a) Annual Report and Consultation Concerning Funding for
the Following Fiscal Year.--At the beginning of each fiscal
year after the date of enactment of this Act, the Director of
the Administrative Office of the United States Courts shall
submit to the Committees on the Judiciary of the House of
Representatives and the Senate a report on--
(1) the status of funding the system described under
sections 2 and 3; and
(2) plans for any new fee proposals or adjustments and
whether there is a foreseeable need to use the certification
authority provided under subsection (b)(2) in the following
fiscal year.
(b) Certification Regarding Anticipated Funding in the
Current Fiscal Year.--
(1) In general.--The Director of the Administrative Office
of the United States Courts may treat any and all receipts,
funds, expenditures and costs associated with the system
established under sections 2 and 3 as constituting a separate
item in its budget distinct from the remainder of its budget.
(2) Certification.--At the beginning of a fiscal year,
starting in fiscal year 2023, and only when necessary, the
Director of the Administrative Office of the United States
Courts may submit a certification, including supporting
documentation and analysis, to the Committees on the
Judiciary of the House of Representatives and the Senate,
which--
(A) identifies any expected deficit in funds for that
fiscal year; and
(B) specifies the Director's response for such deficit for
the remainder of that fiscal year, including--
(i) modifying the scope and scale of the system described
in sections 2 and 3;
(ii) increasing fees or other receipts within the Judicial
Conference's authority; and
(iii) temporarily delaying the delivery of the system.
(3) Consultation.--Not later than 30 days after receipt of
the certification described in paragraph (2), the Director of
the Administrative Office of the United States Courts and the
Chairs and Ranking Members of the Committees on the Judiciary
of the House of Representatives and the Senate shall meet in
person concerning the certification, supporting
documentation, and analysis.
(4) Implementation.--The Director of the Administrative
Office of the United States Courts may implement its response
described in paragraph (2) any time after the 30-day period
following the consultation described in paragraph (3).
(5) GAO review.--In any fiscal year during which such
certification is issued and implemented, the Comptroller
General of the United States shall conduct a comprehensive
review of the certification not later than 120 days after its
submission, including--
(A) the accuracy of the expectations of the Director of the
Administrative Office of the United States Courts with
respect to any deficit in funds;
(B) the efficacy of the Director's recommended response,
and
(C) the Comptroller General's recommendations for
alternative or additional responses submitted as a report to
the Director and Committees on the Judiciary of the House of
Representatives and the Senate.
(6) Director response to review.--Not later than 60 days
after the Comptroller General of the United States conducts a
review under paragraph (5), the Director of the
Administrative Office of the United States Courts shall
prepare and submit to the Committees on the Judiciary of the
House of Representatives and the Senate a response to such
review.

SEC. 7. RULE OF CONSTRUCTION.

Nothing in this Act, or the amendments made by this Act,
shall be construed to--
(1) affect the filing fees or other filing procedures for
prisoners; or
(2) abrogate, limit, or modify the requirements described
in section 1915 of title 28, United States Code.

[[Page H7018]]

SEC. 8. DIGITAL ACCESSIBILITY STANDARDS.

The system described under sections 2 and 3 of this Act
shall comply with relevant digital accessibility standards
established pursuant to section 508 of the Rehabilitation Act
of 1973.

SEC. 9. DETERMINATION OF BUDGETARY EFFECTS.

The budgetary effects of this Act, for the purpose of
complying with the Statutory Pay-As-You-Go Act of 2010, shall
be determined by reference to the latest statement titled
``Budgetary Effects of PAYGO Legislation'' for this Act,
submitted for printing in the Congressional Record by the
Chairman of the House Budget Committee, provided that such
statement has been submitted prior to the vote on passage.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Georgia (Mr. Johnson) and the gentleman from North Dakota (Mr.
Armstrong) each will control 20 minutes.
The Chair recognizes the gentleman from Georgia.

General Leave

Mr. JOHNSON of Georgia. Mr. Speaker, I ask unanimous consent that all
Members have 5 legislative days to revise and extend their remarks and
include extraneous material on the bill under consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Georgia?
There was no objection.
Mr. JOHNSON of Georgia. Mr. Speaker, I yield myself such time as I
may consume.
Mr. Speaker, I rise in support of H.R. 8235, as amended, the Open
Courts Act, which would require the Federal judiciary to allow free
public access to court records over the internet and modernize the
court records system so that it will cost less to maintain and be more
secure.
This act is the product of over 5 years of bipartisan effort, and I
am so proud that we have gotten the bill to this moment.
I first want to thank the majority leader, Steny Hoyer, for his
involvement and commitment to bringing this important legislation to
the floor, and I would like to thank Director Duff and his staff for
their recent attention to this bill.
I also want to thank Mr. Jordan for his support for this bill at the
committee's markup.
I would be remiss if I did not recognize our partners in the Senate,
Senators Portman and Wyden, for their leadership and commitment to this
effort.
Finally, I extend sincere appreciation to my colleague from Georgia,
Doug Collins, the colead on this bill. I want to thank him for his
partnership in working to make the Federal court records system freely
accessible to all Americans.
I would also like to thank Perry Apelbaum with the Judiciary
Committee, Jamie Simpson and Matt Robinson of my subcommittee, Jon
Ferro with Congressman Collins' office, and I would also like to give a
special thanks to Keith Abouchar with Leader Hoyer's office for all of
his efforts to help us be on the floor today with this bill. Without
everyone's persistence, dedication, and countless hours of hard work
behind the scenes, we would not be here today.
Mr. Speaker, wealth should not act as a barrier to access our courts.
Whether it is a journalist reporting on the courts' activities or a
citizen petitioning the court for redress, access to the courts should
be free to all, not just to those who can afford it.
Forcing the public to pay for access to court records imposes an
unnecessary and unconscionable burden on people who are simply engaging
in a constitutionally protected activity. Transparency and
accessibility should be our goal, not profits and limited access.
Court records should be as easy to access as legislation is on
Congress.gov. All you have to do is put in that website, go to it, and
look at all of the legislation that we produce, Mr. Speaker, and you
should be able to do the same thing at the Federal courthouse.
Our courts are a vital part of America's government, and we in
Congress have a responsibility to ensure that public records in public
courthouses are accessible for free to the public. This bill provides
such protection of our most sacred democratic ideals.
Technology has become essential to preserving our First Amendment
rights by helping to ensure meaningful access to justice and to court
records. It is past time that we bring our Federal court records system
into the 21st century.
Convenient access to public records in public courthouses shouldn't
be a privilege for the few who can afford it. It is our duty to change
the system, and that is what this bill does. It finally makes it fairer
for everyone else.
Mr. Speaker, I encourage all of my colleagues to join us voting on
this bipartisan piece of legislation, and I reserve the balance of my
time.
Mr. ARMSTRONG. Mr. Speaker, I yield myself such time as I may
consume.
Mr. Speaker, H.R. 8235, the Open Courts Act of 2020, will modernize
the judicial branch and bring it sometimes kicking and screaming into
the 21st century.
First, the bill will update and streamline the Federal judiciary's
case management system, ushering in much-needed improvements to the
technological capabilities of the system.
The bill will consolidate the judiciary's electronic court records
system, establish certain data standards, and require the records
system to follow those standards. These improvements to the case
management system will increase the efficiency and improve the
availability of court records to the American public.
Second, the Open Courts Act will require that Federal court records
are free and accessible. By ensuring that public records are freely
accessible, this bill will bring increased transparency to our judicial
process.
The reforms contained in the Open Courts Act are not new ideas.
Advocates of judicial transparency have long supported efforts to make
court records free to the public. The Open Courts Act makes long
overdue, commonsense reforms. This bipartisan legislation will expand
the public's ability to not only find court records, but to access them
as well.
However, before I conclude my statement, I do want to note one thing.
While this bill is bipartisan, the text was updated late last night.
The bill now contains an additional eight pages and includes various
changes to the text, specifically regarding redaction language of
sensitive info.
I understand why courts don't necessarily want this burden, and
typically, under current process, filers are the ones who do the
redactions, but now the text seems to be silent on the redaction of
sensitive information altogether.
I honestly don't know where that places the current policy, and the
reason I don't know is because we were made aware of these changes less
than 24 hours ago. This is not how a bipartisan bill is supposed to
proceed, and it is a really good way to get a broad bipartisan bill to
not become law.
Mr. Speaker, I yield 3 minutes to the gentleman from Kentucky (Mr.
Barr).
Mr. BARR. Mr. Speaker, I include in the Record a letter from the
Judicial Conference of the United States.

Judicial Conference of

the United States,

[[Page H7019]]

access system, in our view, vastly underestimates the cost of
the bill. Critically, some of the bill's revenue streams are
also untested, difficult to administer and/or impossible to
estimate reliably in advance.
In our cost estimates are correct--or even marginally
closer to correct than the bill's proponents'--there is no
scenario in which the revenue generated by the bill could be
sufficient to cover those costs. This will force the
Judiciary to slash funding for staff and other critical
operations. Moreover, the Judiciary's backbone case
management system, and therefore the Judiciary itself, could
grind to a halt. In anticipation of a funding shortfall, the
bill now provides for an emergency pause in the transition to
the new system required by the bill. This might be preferable
to the forced accommodation of significant unbudgeted costs,
but such a pause in the middle of a massive transition of
systems would result in its own substantial disruptions.
Better information on the costs of this bill and the
revenues it would generate is needed to ensure that the
Judiciary and public users of this system avoid devastating
consequences. We believe we will have a much clearer picture
of cost projections in early Spring 2021, at the conclusion
of the first phase of a study for a replacement case
management system to be performed by GSA.
The Judiciary has other major concerns with the bill,
including issues of technological feasibility, security, and
governance, but the threat of devastating budget consequences
for the Third Branch simply cannot be overemphasized.
The Judiciary is committed to working collaboratively with
the next Congress to improve our systems for filing, storing,
managing, and making available to the public all relevant
court records. We recognize and share Congress' bipartisan
interest in a modern, effective, fair and successfully funded
system. The current version of the Open Courts Act, however,
is not the way to accomplish those goals. We look forward to
working through these shared goals with you in the future.
Sincerely,
James C. Duff,
Secretary.

Mr. BARR. Mr. Speaker, let me first just acknowledge the well-
intentioned goals of this legislation and my colleagues from Georgia in
a bipartisan way working together. I applaud their efforts to attempt
to modernize the judicial branch and make judicial records more
accessible to the American people. Nevertheless, I regrettably rise
with reservations, as a former practitioner in Federal court, regarding
H.R. 8235, the Open Courts Act of 2020.
According to the Judicial Conference of the United States, the bill,
as drafted, would have devastating budgetary and operational impacts on
the judiciary's ability to serve the public. Current estimates for the
cost of the bill from the Judicial Conference are currently $2 billion
apart from the Congressional Budget Office's preliminary estimates of
the cost to develop and implement a new electronic filing and public
access system.
Should these cost estimates be correct, there is no scenario in which
the revenue generated by the bill would cover costs, forcing the
judiciary to slash funding for staff and other critical operations.
This bill has a $2 billion price tag, and the entire budget of the
Federal judiciary is only $8 billion, annually.
Additionally, despite the bill's cap on increases to filing fees, it
authorizes the judiciary to raise filing fees if the other revenue
sources in the bill prove insufficient to cover costs.
I know my colleagues do not want to deny access to the Federal
courts. Ultimately, this bill does not resolve some of the judiciary's
most fundamental concerns, and, as a result, I regrettably urge my
colleagues to consider these issues and the bill's impact on the
judiciary.
I know the Judicial Conference is willing to work with Congress to
resolve some of these outstanding issues and to get at the sponsors'
goals--which are very laudable, indeed--and that is to modernize the
judicial branch and to make judicial records more accessible to the
American people.
I will say that, under current law, low-income Americans can access
many of these records without cost, and the vast majority of those
organizations and individuals that are paying for these records and
underwriting the costs are institutions that have the means to do so.
So, Mr. Speaker, I urge my colleagues to consider these issues and
the bill's potential impact on the judiciary, and I encourage my
colleagues on the other side of the Capitol to work with the Judicial
Conference to resolve these outstanding concerns.
Mr. JOHNSON of Georgia. Mr. Speaker, I yield myself such time as I
may consume.
Mr. Speaker, I appreciate the comments of my friend.
This has been a 5-year, bipartisan effort that only recently yielded
the ability of the Judicial Conference, through the Administrative
Office, to actually come to the table and talk to Congress to try to
work out their concerns.
After about a week of lots of conversation, hours upon hours of
conversation, dialogue, and negotiations, we came up with an amended
bill. Then at the very last minute, today, the Judicial Conference
issues a letter citing a preposterous figure--$2 billion--for this
system, which is not attached to any realistic cost estimate
whatsoever.
Mr. Speaker, I include in the Record the CBO's, Congressional Budget
Office's, estimate of the cost of the Open Courts Act to put in a new
system that is more secure and more user friendly than the one that is
in place right now.

CBO Estimate of the Statutory Pay-As-You-Go Effects of H.R. 8235, the
Open Courts Act of 2020, as Posted on the Website of the Clerk of the
House on December 8, 2020

Estimates relative to CBO's March 2020 baseline. Components
may not sum to totals because of rounding.
H.R. 8235 would require the Administrative Office of the
United States Courts (AOUSC), working in coordination with
the General Services Administration, to develop and implement
a modernized software system to manage the electronic records
of the court. The legislation would require that public court
records be accessible to the public, and would authorize the
AOUSC to impose new fees--particularly on high-volume, for-
profit users--to cover the costs of developing and
maintaining the new system.
If enacted, CBO expects those fees would generate $47
million in additional revenue over the 2021-2030 period,
mostly from high-volume users of the system. CBO believes
that the new fees should be recorded in the budget as
revenues, because they are new and an exercise of the
government's sovereign power over the federal judiciary.
Those revenues would be offset by a decline in other revenues
of approximately 22 percent to account for indirect tax
effects. As a result, CBO estimates that the legislation
would increase net revenues by $37 million over that period.
Under the bill, the additional revenue would be deposited
in the Judiciary Information Technology Fund, and the AOUSC
would be authorized to spend those fees without further
appropriation. As a result, CBO estimates H.R. 8235 would
increase direct spending by $46 million over the 2021-2030
period. CBO expects that most of those costs would be
incurred during the 2021-2025 period as major work on
software development is completed and the system is deployed
across the federal judiciary.
On net, CBO estimates that enacting H.R. 8235 would
increase the deficit by $9 million over the 2021-2030 period.
If enacted, H.R. 8235 also would affect spending subject to
appropriation by the AOUSC; CBO has not completed an estimate
of that effect.

Mr. JOHNSON of Georgia. It is a state-of-the-art, 21st century system
as opposed to a 1985 system, one that will cost, in the CBO's
assessment, about $46 million over 10 years.
That is a drastic difference than a $2 billion cost estimate
submitted at the last minute to confuse and try to derail passage of
this very commonsense, necessary legislation that brings judicial
records into the 21st century.
Mr. Speaker, I am prepared to close, and I reserve the balance of my
time.

{time} 1730

Mr. ARMSTRONG. Mr. Speaker, with all of the concerns that exist, I
think the goal of transparency and cost effectiveness are still worthy
of this, and I urge support of the bill.
Mr. Speaker, I yield back the balance of my time.
Mr. JOHNSON of Georgia. Mr. Speaker, I yield myself such time as I
may consume.
Mr. Speaker, H.R. 8235 is a bill that will make a meaningful
difference in the accessibility and transparency of an entire branch of
the Federal Government. It vindicates our critical First Amendment
rights and it will establish a level playing field for access to
critical government documents. For those reasons, I urge my colleagues
to support the bill, as amended.
Mr. Speaker, I yield back the balance of my time.
Mr. HOYER. Mr. Speaker, I want to commend Chairmen Jerry Nadler and
Hank Johnson, Rep. Doug Collins, Ranking Members Jim Jordan and Martha
Robey, Director of the Administrative Office of the Courts Jim Duff,
and their respective staffs for their efforts

[[Page H7020]]

to develop and improve this important legislation. A number of
improvements have been made over the last several days to the Open
Courts Act as reported out of the Judiciary Committee by voice vote in
September. This bill would mandate the development of a modern public
records access system that would also relieve the general public, small
law firms, and other modest users of having to pay fees to access
public documents filed in federal courts. Among other priorities, the
bill would provide for the adoption of a progressive fee schedule
applying to aggregators and large law firms, which are the biggest
consumers of public court records and use these materials for profit-
seeking ends.
I recognize the press of other business may prevent this bill from
being enacted before the end of this Congress. Whatever course awaits
the Open Courts Act after today's passage, I look forward to continuing
working with all the parties to react to any new information that we
may receive and continue refining the bill in mutual discussions.
Mrs. ROBY. Mr. Speaker, I would like to include in the Record a
letter from the Judicial Conference of the United States voicing their
opposition and concerns to H.R. 8235, the Open Courts Act of 2020.

Judicial Conference of

the United States,

Washington, DC, December 7, 2020.
Hon. Steny Hoyer,
Majority Leader, House of Representatives,
Washington, DC.
Dear Mr. Leader: I write on behalf of the Judicial
Conference of the United States, the policy-making body of
the federal Judiciary, to express our continued strong
opposition to H.R. 8235, the Open Courts Act of 2020
(``OCA''), which is scheduled for floor action on Tuesday,
December 8, 2020. This legislation--which will take years to
implement--rushes forward without appropriate and necessary
assurances and provisions regarding the budget for such an
enormous undertaking. The bill as drafted will have
devastating budgetary and operational impact on the Judiciary
and our ability to serve the public.
We very much appreciate that you, along with House
Judiciary Courts Subcommittee Chairman Hank Johnson,
intervened last week after my helpful conversation with
Chairman Johnson to prompt more dialogue between the
branches. The many hours of staff conversations, through the
weekend, that followed your encouragement led to some
significant textual changes to the bill. We are grateful for
those efforts which addressed some of our concerns with the
previous version of the bill. Very serious concerns remain,
however, and further dialogue is much needed.
The fact is that our preliminary estimates for the cost of
this bill is orders of magnitude higher than the bill's
proponents have presumed--currently we are $2 billion apart--
and CBO's hurried and preliminary estimates of the cost of
developing and implementing a new electronic filing and
public access system, in our view, vastly underestimates the
cost of the bill. Critically, some of the bill's revenue
streams are also untested, difficult to administer and/or
impossible to estimate reliably in advance.
If our cost estimates are correct--or even marginally
closer to correct than the bill's proponents'--there is no
scenario in which the revenue generated by the bill could be
sufficient to cover those costs. This will force the
Judiciary to slash funding for staff and other critical
operations. Moreover, the Judiciary's backbone case
management system, and therefore the Judiciary itself, could
grind to a halt. In anticipation of a funding shortfall, the
bill now provides for an emergency pause in the transition to
the new system required by the bill. This might be preferable
to the forced accommodation of significant unbudgeted costs,
but such a pause in the middle of a massive transition of
systems would result in its own substantial disruptions.
Better information on the costs of this bill and the
revenues it would generate is needed to ensure that the
Judiciary and public users of this system avoid devastating
consequences. We believe we will have a much clearer picture
of cost projections in early Spring 2021, at the conclusion
of the first phase of a study for a replacement case
management system to be performed by GSA.
The Judiciary has other major concerns with the bill,
including issues of technological feasibility, security, and
governance, but the threat of devastating budget consequences
for the Third Branch simply cannot be overemphasized.
The Judiciary is committed to working collaboratively with
the next Congress to improve our systems for filing, storing,
managing, and making available to the public all relevant
court records. We recognize and share Congress' bipartisan
interest in a modern, effective, fair and successfully funded
system. The current version of the Open Courts Act, however,
is not the way to accomplish those goals. We look forward to
working through these shared goals with you in the future.
Sincerely,
James C. Duff,
Secretary.

Ms. JACKSON LEE. Mr. Speaker, as a senior member of the Judiciary,
Committee, I rise in strong support of H.R. 8235, the ``Open Courts Act
of 2020,'' which would centralize and modernize the federal judiciary's
court records systems (called CM/ECF) and would eliminate the paywall
(called PACER) that currently forces the public to pay to access these
records.
The new system will provide a centralized, easily searchable site to
file and read court records and monitor docket activity, and equally
important, make all public court records on the site available free of
charge.
Every year, the public pays the federal judiciary more than $100
million in fees so they can read the motions, briefs, orders, exhibits,
calendar entries, and other court filings that make up the overwhelming
majority of federal litigation and bankruptcy practice.
These fees are used to maintain and operate the judiciary's
electronic court records systems (called ``case management and
electronic court filing systems'' or ``CM/ECF'') that judges, court
employees, and the parties before the court use to file documents,
issue decisions, and generally manage proceedings.
Although many parties before the court pay a fee to initiate a
proceeding or otherwise file a document (generally called ``filing
fees''), these fees do not support the electronic courts records
systems they rely on.
Instead, those systems are subsidized by the public.
The fees the public pays to view federal court records are officially
called ``electronic public access'' or ``EPA'' fees.
More commonly, they are called ``PACER'' fees, after the paywall
system the public must use to pay for and access those records.
The Public Access to Court Electronic Records (PACER) system charges
users 10 cents per page to view, download, or search for public court
records.
The per-document fee is capped at $3.00; audio files of court
hearings, if they exist, cost $2,40.
Judicial opinions are free, as are the first $30 of charges per
quarter.
As several retired judges have argued, ``openness serves a structural
role in our republican system of self-government'' and that ``opening
up judicial records by removing the PACER paywall would be consistent
with the best traditions of judicial transparency.''
PACER functions as a paywall that the public must pass through to
access the judiciary's electronic court records systems.
These systems are highly decentralized--every one of the 94 district
courts, 13 courts of appeals, and 90 bankruptcy courts have their own
CM/ECF system.
Until recently, for example, a user was required to have a separate
username and password for every CM/ECF system--today, some, but not
all, courts allow a user to have the same password and username.
Seamus Hughes, the Deputy Director of George Washington University's
Program on Extremism, has spent years researching terrorism cases in
the United States, Europe, and in the Middle East. As he researches
individuals and entities charged with providing material support to
foreign and domestic terrorist organizations.
As part of those investigations, he developed expertise in searching
the federal court records system and in testimony last year, described
the consequences of this set up:
Quite simply, it is not easy to access public court records on PACER.
PACER provides access to federal criminal records and is organized by
federal districts in each state . . . To use the system you need to
apply for a PACER account, get a password, and know what district in
each state you want to search. Each search requires the user to know
what they are looking for and where. Even then the cost is not always
tied to a result.
For example, if you are a terrorism researcher and want to review
every case that charges material support to a terrorist organization,
you would have to go to 94 different individual court websites and
conduct a new and separate search on each website.
Mr. Speaker, in addition, some public court records, including trial
exhibits and unsealed documents, are routinely unavailable because they
are not posted on a court's CM/ECF system, and documents are difficult
to find because there are no uniform tags or naming conventions.
Mr. Speaker, the Open Courts Act of 2020 addresses these problems and
helps ensure that the public and free access to the American judicial
system remains available.
Section 2(a) of the bill requires the Director of the Administrative
Office of the United States Courts to, in coordination with the
Administrator of General Services, consolidate all federal court
records into one system within 2-3 years.
Section 3(a) requires the Director of the Administrative Office of
the United States Courts to, in coordination with the Administrator of
General Services, make all court records on the system established by
section 2 freely available to the public.
Section 3(b) grants authority to the Judicial Conference to
designate, after notice and

[[Page H7021]]

comment, certain categories of records that will be subject to up to a
5-day delay before they are made publicly accessible.
Any such designation must be no broader than necessary and be based
on a determination of a specific and substantial interest in
restricting the public right of access to court records. Any
designation expires after 3 years unless renewed via notice and
comment.
Section 3(c) requires the Director of the Administrative Office of
the United States Courts, in coordination with the Administrator of
General Services, to ensure that the public can search for and access
court records, similar to the requirements under Section 2 of this act.
Finally, section 3(d) establishes the dates when all PACER fees must
be eliminated and court records are made freely available to the public
within two years from enactment unless the Director of General Services
certifies that an additional year is needed.
This is needed legislation and I support it.
I urge all Members to join me in voting for H.R. 8235, the ``Open
Courts Act of 2020.''
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Georgia (Mr. Johnson) that the House suspend the rules
and pass the bill, H.R. 8235, as amended.
The question was taken; and (two-thirds being in the affirmative) the
rules were suspended and the bill, as amended, was passed.
A motion to reconsider was laid on the table.

____________________