WJI calls on federal court to ensure public access to judicial opinions at no cost

By Margo Kirchner

After Wisconsin Justice Initiative identified some improper charges for documents issued by judges in Wisconsin’s eastern district federal court, Chief Judge Pamela Pepper indicated that all judges in the district have been notified and they “will take (these issues) into consideration.”
 
Federal district judges have broad discretion over whether the public is charged for obtaining copies of the orders and decisions they issue.
 
Documents filed in federal district court cases are available to the public through the Public Access to Court Electronic Records, or “PACER,” system, though generally not for free. For most documents, the system charges 10 cents per page, with a cap at $3.00.
 
Judicial opinions are an exception. Per the fee schedule for PACER, no fees are to be charged for access to “judicial opinions.” That term has been defined as “any document issued by a judge or judges of the court, sitting in that capacity, that sets forth a reasoned explanation for a court’s decision.”
 
Responsibility for determining which documents meet this definition rests with the authoring judge and should be made at the time the document is filed. The judge or staff member when filing an order or decision in the court record indicates whether the document meets the definition.
 
Over several years, WJI staff have incurred charges for certain documents that a reasonable person would think were judicial opinions. Most judicial opinions have been free, as expected, yet charges for judicial opinions occurred often enough to merit raising the issue with the court.
 
WJI wrote to Pepper and the interim clerk of court in July 2025, stating that the categorization of a document as a written opinion “has a large effect on public access and affordability for those monitoring federal cases. Even though documents over 30 pages are capped at $3.00, . . . PACER charges quickly add up," especially for those monitoring cases with extensive dockets and lengthy briefs and opinions.
 
“Improper categorization of judicial opinions may decrease the public’s confidence in the court’s fairness and transparency and cause needless frustration with the court,” WJI wrote. “The public should not be paying for documents that should be free. Such costs impact the openness of the courts and the ability of the public to monitor them.”
 
In litigation brought by a PACER user several years ago challenging his payment for certain judicial opinions, a federal judge in Florida wrote that the authoring judge has the “absolute authority” to decide what court documents constitute judicial opinions. Thus, members of the public seem to have no recourse regarding a court’s failure to categorize a document as a free judicial opinion.
 
WJI asked that the Eastern District’s judges and clerk of court be vigilant in making sure any order filed by a judge is assessed for being a “judicial opinion,” that the chief judge and clerk of court review procedures to ensure that judicial opinions are properly coded in the docketing system, and that court staff are adequately trained on how to docket judicial opinions to make them free to the public. WJI also queried whether the district has a procedure for the public to report improperly docketed judicial opinions in the PACER system and ask for them to be recategorized so they are free to the public.

WJI indicated its preference for a default rule “that everything signed by a judge and entered into the case docket should be docketed as a judicial opinion. We argue that anything signed by a judge, plus all court minutes, qualify as judicial or written opinions and should be docketed as such.”
 
Minutes in particular may escape the attention of staff as being judicial opinions.  However, the minutes of some judges are quite detailed and contain “reasoned explanation” for the court’s decision, which WJI argues results in them meeting the definition of judicial decisions.  “Plus, even for minutes that do not contain reasoned explanations, in light of open court and public access requirements and policies, all minutes should be free to the public.“
 
Pepper replied that she had shared WJI’s letter with all magistrate and district judges in the Eastern District and that, as noted above, the judges will take WJI’s concerns “into consideration.”
 
WJI argues that a judge should always exercise his or her discretion to grant broader free PACER access, so if there is ever a question about the categorization of a signed document, it should be categorized as a judicial opinion.
 
Have you been charged for a judicial opinion in PACER from the Eastern District or Western District of Wisconsin? If so, please let us know.