24 Aug RECAP, Recycled Bankruptcy Documents for the Public
It costs eight cents per page to look at “public” records in most bankruptcy courts. With the advent of CM/ECF, the electronic federal court system for managing and storing case files, the Administrative Office of the US Courts has made many of these records accessible to the public through the “Pay Per View” system described by the acronym PACER. The Oregon bankruptcy court participates in this system of storage and online public access as do approximately 200 federal courts around the nation. Recently, the Princeton Center for Information Technology Policy and others have stepped in with RECAP (PACER spelled backwards); new internet software created in an effort to make public court documents accessible free to the public; through a type of “internet recycling”.
Lawyers and parties involved in court proceedings are given one free look at documents through a single use link when they are served with a copy of a document by email in the federal court system. If they use the free Mozilla Firefox web browser with the RECAP Foxfire extension to locate and view this court record, a copy of each document so accessed will automatically be stored in a searchable database that is available to the public without charge. There is a downside to this type of publication. One of the first questions asked by consumer debtors when they file bankruptcy is “Will it be in the newspaper?” The answer is normally “no”. It is up to each newspaper whether or not to publish that type of information, but consumer bankruptcies are not much news on an individual basis and most newspapers only publish bankruptcy filings that are of particular interest. On the other hand, if someone uses RECAP to access the PACER files, the bankruptcy filing and all of the case records so accessed will quickly become visible to Google and other internet search engines.*
Of course, the US courts administrators hate the idea of RECAP. They earn revenue and fund operation of their electronic records system with fees charged to access documents. However, there does not appear to be much they can do about it. A recent notice on the PACER Service Center website reminds fee-exempt users that upload to a public Internet repository through RECAP is a violation of their user agreement. On the other hand, the documents are public in nature and those of us who use the federal court records and are legally entitled to a free copy or pay the required user fee have no restriction imposed on our use of the document. The 2002 E-Government Act provides that the federal courts “may, only to the extent necessary, prescribe reasonable fees” to permit access to such records. There is no legislative authority given to the judiciary for it to prevent republication of those records.
As a lawyer representing consumer debtors in bankruptcy, I feel it is in the best interests of my clients not to use the RECAP system. Lawyers are prohibited from releasing information, even if it is known by others, that will harm their clients. I am sure that most of my clients would prefer that their bankruptcy information remain safe from the Google search robots. But, as a member of the public, I applaud the efforts of Princeton University and the developers of the software for this new online tool to shed sunlight on the often obscure world of the bankruptcy court and other federal courts.
*Please see my later post on RECAP privacy issues where one of the developers of the software answer my privacy concerns.
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