Thursday, June 13, 2013

The paywall to public records in Thurston County (Part 1)

Should it cost almost $30 to save a digital version of a 16 page public document?

While court records aren't specifically referenced in Washington State's public record laws (and here), there is a fairly well understood common law provided access to court filings. So, in short, there's a public access right that predates Washington's PRA. But, since courts aren't cited in the PRA, they can set down pretty strict rules about what we have access to.

Now, let's backtrack a little bit. Back in 2009, the Thurston County Clerk (the county-wide elected administrator of the courts) started a project to make court records available online. Horribly named the "E-Commerce" system, it only works (sometimes) on one browser (Microsoft Explorer), has only limited search options and it prohibitively expensive for anyone not willing to plunk down hundreds of dollars to access public records.

When I made a search back in February for records about a case concerning the legalization of marijuana, one 16 page filing would have cost me almost $30 just to view. This seems absurd for a transaction with minimal costs.

And, let's be blunt. Even if court records are exempt from the PRA, the courts are an essential part of our government. So, if "(t)he people of this state do not yield their sovereignty to the agencies that serve them," this should include the courts.

But, this Thurston County isn't at all unique in asking for inordinate sums for courts records. In fact, the federal court system (using a tool call PACER on the web since 2001) that has been similarly criticized for its  cost to the user and arcane interface.

From Reason Magazine in 2012:
Not everyone, however, is so pleased with PACER, which is an Internet-based service that allows attorneys, litigants, and other interested parties to access docket sheets, judicial opinions, and other documents related to federal cases. “Its user interface sucks,” says Carl Malamud, an open government gadfly and founder of “Browsers aren’t supported properly. There’s no API. There’s no batch access.” 
But perhaps what galls Malamud and other PACER critics most is the system’s access fees. For the last several years, Malamud and various others, including Steve Schultze, associate director of Princeton University’s Center for Information Technology Policy, have been insisting that the government is spending way too much to develop and maintain PACER given its limited functionality, while charging users way too much to access it.
The same Reason article points out what a cash cow PACER has become for the federal courts, bringing in millions of each year. Ironically, a significant portion of that is from Justice Department lawyers, making the PACER system a defacto tax payer supported system.

In a similar vein, Thurston County's E-commerce system (despite the high costs to access) could apparently be paying for itself. From a 2013 budget document, the total cost of records keeping in the Clerk's office is about $60,000. According from an answer emailed to me by the Clerk's office, the total revenue from the E-commerce system has grown slowly from about $41,000 in 2010 (its first full year) to $48,000 in 2012 (the last full year).

Now, it occurs to me that the E-commerce system is just a small portion of the records keeping system at the Clerk's office. This graph from another budget document would seem to back up the split between the E-commerce documents and other documents provided by the Clerk.

While the number of documents provided dropped off significantly in 2011, the number of E-commerce documents has stayed steady. Despite this, E-commerce documents only make up less than a third of the overall load. This would seem to indicate that the system providing less than a third of the load is paying for more than two-thirds of the budget.

I could be wrong, but that's what it looks like to me.


Yodelling Llama said...

I happen to think access to public records ought to be free to the public. The whole reason for keeping many of these records is precisely so that members of the public can take a gander (and e.g. make sure the government entity--here, the courts--are functioning properly).

But. I am conscious that a small minority would almost certainly take advantage and bankrupt the system with an inordinately large number of requests. So I'm not opposed to a minimal fee.

But I don't believe the size of the fee ought to have any relationship to the cost of providing records. And it should be small enough to not dissuade anyone from accessing records. And there should be an indigency waiver. And perhaps an in-person "inspect, but not copy" no cost option (as there is under the PRA).

Emmett said...

If they're just files on a server somewhere, I don't think the small minority that would use the system to excess could really bankrupt it.

Anonymous said...

I have to use Thurston County's e-commerce system every few months or so, and each time I dread the experience. It is the most confusing, antiquated, esoteric, glitchy system I've ever used. It's also downright insulting the way all the clerk's user guides, webpages, emails, etc. are filled with "VERY IMPORTANT" warnings and messages to the users, each in a different font color, essentially telling the users that they are idiots and if they can't successfully use e-commerce, it's their fault.

My final gripe about Thurston County's e-commerce system is that, even though it's online, you can only actually use it during court hours. What the heck? Why allow online access to documents only during certain hours of the day?