Maine courts have finally started to shift records online, but the fees for viewing electronic records could be a barrier to public access.
The first 300 cases, a tiny fraction of the eventual volume, have been filed in the state’s new electronic system. Right now, the public must pay $1 per page just to view a document online, a cost that can quickly add up for a lengthy filing. That rate matches the current fee to make copies of a document at a courthouse, although anybody can look at a paper file in person at no cost.
Court officials have promised that a spring update will make documents available to preview for free, but downloading those pages will cost $2 for the first page and $1 for each additional page, which is 10 times the amount charged in the federal courts. There is no cap to the fee for downloading a single document; for example, 25 pages would cost $26.
A spokeswoman said the Maine Judicial Branch has to rely on those fees to pay for the new system, which will cost between $1.3 million and $1.8 million each year.
“As the system is rolled out in more case types and courts, or if we were to receive general fund dollars to support Maine eCourts, it is possible that fees could be adjusted or perhaps eliminated,” Amy Quinlan wrote in an email.
Quinlan also said court officials will consider setting a maximum charge for a single document. Parties and attorneys of record can access documents in their own cases for free. Courthouses will have public access computers where people will be able to view entire documents at no cost, although they will need to pay for paper copies.
Public access advocates balked at those fees.
“I think the court system is probably acting in good faith in trying to get this stuff online, but given that anybody can walk into a courthouse and see any case or pleading at no charge, … it seems to me like the best practice for the court system would be to make the electronic documents available at as low a cost to the public as possible,” said Jim Campbell, president of the Maine Freedom of Information Coalition.
Court systems in many states have moved their records online in recent years. But their approaches vary widely in what documents are available online and how much they cost.
The federal courts use a document system called PACER, which charges 10 cents per page and typically has a cap of $3 for documents that contain more than 30 pages. A federal appeals court recently ruled that those fees were higher than necessary to operate the system, so they could be reduced.
“It should not be used as a cash cow to make up other budget deficits on the backs of individuals who are only seeking what should be their right: to have access to public records,” Stuart Rossman, director of litigation at the National Consumer Law Center, which is one of the plaintiffs in the case, said in an interview Friday.
Rossman was not familiar with Maine’s shift to electronic court records. But he said the fees can be used to cover ongoing operating costs, like contracts with private companies that maintain these systems.
“You’re having the consumers subsidize the profit margins of that company,” he said. “That doesn’t seem right, not for a public record.”
Maine signed a contract to move records online with Tyler Technologies in 2016. The Legislature allocated $15 million to implement the original system, but Quinlan said the final product will be more expensive and will also come with those annual contractual costs.
The project will not be fully implemented until at least 2022. Traffic cases in District Courts were the first to go online in 2018. At the end of November, some civil and family cases in Bangor courts moved online, along with the statewide Business Consumer Docket.
Criminal and juvenile dockets will move online in Penobscot and Piscataquis County courts by spring, and the rollout will continue this year and next in all trial courts. This spring will also include a feature called re:Search, which Quinlan said will allow a preview of up to 25 pages and will also expand search capabilities.
A task force initially recommended that online access to court records should be limited in order to protect individuals from those who would misuse personal information, but critics argued that would be the wrong approach for government transparency. Maine’s top judge announced in 2018 that the public would be able to access most court documents online for an undetermined fee.
Nearly 180,000 cases were filed in Maine’s courts in fiscal year 2019, the most recent report available. More than half – 75,000 – were traffic violations. Nearly 50,000 were criminal cases. Civil filings, including small claims and evictions cases, accounted for nearly 25,000. Family matters, including protection from abuse cases, adoptions and divorces, were another 21,000.
The number of cases filed electronically by the middle of January was 319, which include more than 1,100 individual documents. Quinlan could not provide a breakdown of how many of those cases are accessible to the public in the online portal. Family matters, child protection matters and protection orders cases are not accessible to the public remotely but can sometimes still be reviewed at the courthouse.
The rules that govern the electronic filing system, published last summer, only say that the court may charge “reasonable fees for providing access to court records.” The court is also allowed to grant a waiver if cost is a barrier, but Quinlan said the process to request one is not yet in place.
“Historically in Maine, cost has been one of the biggest barriers to public access,” said Judy Meyer, executive editor of the Sun Journal in Lewiston, Kennebec Journal in Augusta and Morning Sentinel in Waterville. “That’s a very common complaint that when someone wants to access documents, they walk away. That does not promote public access.”
Maine’s courts are not subject to the Freedom of Access Act. But the fees implemented in the courts are out of step with those endorsed by the state’s Right to Know Advisory Committee. That group has proposed a bill that would cap fees for public records requests to 10 cents per page and prohibit a fee per page to provide electronic records. That legislation died when COVID-19 disrupted last year’s session, but the members intend to bring it back this year.
“It would just increase transparency,” Rep. Thom Harnett, a Gardiner Democrat who serves on that committee, said. “They’re not making photocopies. They are just accessing electronic files. The Right to Know Advisory Committee always endeavors to make sure government is open and transparent.”
Harnett said he was not familiar with the fees for the new electronic court records, but the matter could be one for discussion at the Legislature’s Judiciary Committee.
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