Open Courts Act of 2020
Floor Speech
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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 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.
(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. 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.
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. 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.
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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.
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.
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