[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,

                                 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

[[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.

                          ____________________