May 9, 2008
Senator Joseph I. Lieberman
Committee on Homeland Security and Governmental Affairs
706 Hart Office Building
Washington, DC 20510
RE: Public Access to Opinions of the U.S. District and Bankruptcy Courts
E-Government Act of 2002 and Reauthorization
Dear Senator Lieberman:
Enclosed is a letter sent by me on May 7, 2008 to James C. Duff, Director of the Administrative Office of the U.S. Courts and Secretary to the Judicial Conference of the U.S. Courts concerning access to the opinions of the approximately 200 U.S. district and bankruptcy Courts. HyperLaw has been involved in efforts to make federal judicial opinions accessible since 1991.
The federal judiciary has made great progress in implementing the E-Government Act of 2002 as to court opinion access. Indeed, even prior to the Act, the judiciary had already taken steps to provide access to the public of U.S. Supreme Court and courts of appeals opinions. Yet, for years access to the lower court opinions has been inconsistent, if it exists at all.
Thanks to the successful implementation by the judiciary of the Case Management/ Electronic Case Filing System (CM/ECF aka PACER), all opinions are now stored in this judiciary database. The system centrally stores all documents filed in federal court actions, and judicial opinions are among the documents filed electronically. Importantly, also stored in a centralized SQL type database are metadata such as court, date of opinion, case name, docket number, and docket entry number. This database is linked to the stored digital image files of the opinions.
Public access however is limited:
We believe that the Administrative Office should (1) take the simple steps of extracting from the master database, the subset of documents and data representing judicial opinions; (2) assign a persistent public file name to each document, and (3) then place the files with associated metadata in an open server available to the public for bulk downloading and searching by search engines.
As discussed in the attached letter, a subcommittee of the Judicial Conference in 1997 concluded that there were no legal reasons why the judiciary could not maintain such a repository. At that time, implemented systems did not exist to do this easily.
Emphatically, we do not suggest at this time that the judiciary provide search capabilities, that it adopt any official citation, or that it convert the image files to pure HTML text. Although these are worthwhile goals for the future, those issues could be a distraction and can be addressed in other contexts. The first task, without further ado, is to make the existing opinions and metadata open to the public in a simple fashion.
This should be virtually a costless exercise, especially in the context of a $400 million a year federal judiciary technology budget, since the data exists in regularized format and is just waiting to be extracted.
At the same time, we ask that judges and clerks exercise extra care in being sure that written opinions are properly designated on the CM/ECF system. To make this task easier to busy judges and clerks, we propose a new category on the system, "written orders," to permit less substantive orders to be marked as such.
Even though the Committee has already approved the E-Government Reauthorization Act, we ask that the Committee hold hearings on the judiciary and the E-Government Act. We note that the December 11, 2007 hearing explicitly did not address issues relating to the judiciary.
Thank you very much.
Alan D. Sugarman
cc: James C. Duff, Director
As founder of HyperLaw, Inc., I have argued for broader public access to judicial opinions since 1991, when HyperLaw released the first CD of United States Supreme Court opinions and then in 1993 the first CD of opinions of the United States courts of appeals. Subsequently, we were engaged in litigation with West Publishing Co. that established that West could claim copyright neither to its internal page citations nor to the text of court opinions as corrected and enhanced by West. In the 1990s, we were involved in efforts to create a public domain citation and wider dissemination of federal court opinions and met and or provided formal presentations to the Judicial Conference, Congressional committees, the Administrative Office, the American Bar Association, the Department of Justice, the Executive Office of the White House, and the American Association of Law Libraries.
The federal judiciary should open up access to opinions of the approximately 200 U.S. district and bankruptcy courts, says HyperLaw's Alan D. Sugarman in a letter to the federal judiciary.
HyperLaw, which has been lobbying the federal judiciary since 1991 on this issue, asked James Duff, Director of the Administrative Office of U.S. Courts to create a subset of the judicial opinion documents presently included in the case documents in the federal judiciary's Case Management/Electronic Case Filing System. (CM/ECF). Duff acts as Secretary to the Judicial Conference, the "executive committee" of judges which runs the federal judiciary, and chaired by the Chief Justice.
Sugarman also wrote a letter to Senator Joseph Lieberman, one of the primary sponsors of the E-Government Act of 2002 which required the judiciary to open up access to opinions. Sugarman asked for further hearings on the pending E-Government Reauthorization Act of 2007 to consider issues related to access to court opinions.
We believe that the Administrative Office should (1) take the simple steps of extracting from the master database, the subset of documents and data representing judicial opinions; (2) assign a persistent public file name to each document, and (3) then place the files with associated metadata in an open server available to the public for bulk downloading and searching by search engines
[W]e ask that judges and clerks exercise extra care in being sure that written opinions are properly designated on the CM/ECF system. To make this task easier to busy judges and clerks, we propose a new category on the system, "written orders," to permit less substantive orders to be marked as such.
Sugarman also proposed that for the natural citation for the federal court opinon files, that file name and metadata include the Docket Entry number along with court and docket number. Sugarman said "A citation is like identifying a person. Give me date, time of birth, place of birth and the father's last name, and you have a natural 'citation' to the identity of the person, issued at the time the person is born. We need that for court opinions as well."