About Erika Wayne

Erika V. Wayne is deputy library director and lecturer in law at Stanford Law School. Along with George Wilson, Kate Wilko and Paul Lomio, Erika Wayne has co-taught Advanced Legal Research for 3 years. Erika's interest in Open Access dates back to the 1996 when she helped in the development of the Securities Class Action Clearinghouse -- the first court designated internet site for public posting of securities litigation filings. And, she hates to pay for *anything* that should be free. She has a law degree from Penn and a library degree from Illinois.

Searching through RECAP

[Post updated -- see note at bottom]

The folks at the CITP have just improved RECAP.

How? They have now added search functionality.

By going to Archive.recapthelaw.org, you can search all the documents gathered by the RECAP Firefox Extension. The simple search allows you quick access to documents from U.S. Federal District and Bankruptcy Court documents, without charge. Further, the search will pull up the full docket sheet for a case, alerting and allowing you to acquire documents that are on PACER (and not yet in RECAP).

There is a simple and an advanced query page. The advanced query allows you to search by case name, number, court and dates of filing.

Two great features: it provides an RSS feed and an e-mail alert option for your query if you want to track the case.

Further, once you are viewing a case, you can add tags and connect related cases. For the case that I was searching, it even showed that it had been viewed 2 other times (by me).

As to privacy concerns, when you view case details, there is a button for reporting privacy violations. Although we hope that these privacy mistakes won’t occur, this button does help remove that data from the searchable RECAP archive.

The site mentions that it is still in the experimental phase and they welcome feedback.  I might suggest a page of search tips (for example, should we use quotation marks for exact searches? etc).  Also, I am not sure if this is searching full-text through all the downloaded documents and the tags that users might supply.  Or, is this searching just through a few fields in the documents (attorney name, nature of suit, etc)?  So, a bit more information on the searching will be helpful.  [I will find out more and add to this post with details.]

But, all that being said, what a great resource.  Now, what should we ask the folks at CITP to do for us next?

[UPDATE: this comes from Dhruv Kapadia, one of the Archive.Recapthelaw.org developers: "Right now the search is limited to the contents of the docket - the descriptions of each document as well as some parts of the metadata
associated with the docket. In the future, we may try to incorporate the OCRed text of the documents themselves, but we aren't doing that currently."]

National Inventory of Legal Materials – Bits and Pieces

On Tuesday, June 15th, there will be a Law.gov event hosted by the Center for American Progress.   

For the event, I plan to share some of our preliminary findings.  Here are a few of the talking points:

The National Inventory of Legal Materials is an attempt to describe, detail and catalog where one can find the legal materials of our Federal, State and local systems.

At the first workshop held at Stanford, we were fortunate to have members of the Northern California Association of Law Librarians (NOCALL)  in attendance.  And, as a group we decided to develop a California prototype of the inventory.     

Since that time, we developed spreadsheets and forms.  And, we now have over 20 volunteers working on the California inventory which includes nearly 700 records.  Some of the information that we have gathered includes copyright assertions, disclaimers, official status and price information.  

And, as our project grew, so did the larger National Inventory.

Now there are 195 volunteers across the country working on federal and state level inventory projects, as it is now a full-fledged activity of the American Association of Law Libraries.  This project marries very nicely with AALL’s continued leadership and advocacy on  topics ranging from permanent public access to authentication to official status of online legal materials.   Much of this work draws and builds upon the fine work of the AALL Electronic Legal Information Access and Citation Committee.

[Also, our Advanced Legal Research class did a tremendous amount of research on National Inventory related questions this past quarter, and we are very grateful for their interest and discoveries.]

Here are a few of the preliminary findings:

At least eight  states assert copyright over their statutory codes online.

Preliminary research shows that  perhaps 42% of the states (or 21 states) assert copyright over their administrative codes online.

Apparently, only one state provides access to case law for a fee.

Almost every state’s online  legal resources include disclaimers, either to the status or reliability of the content.  (And: nearly none of these states had the same disclaimers in print equivalents of these resources.)

Given that the California inventory is nearly completed here are a few examples from California :

Of the nearly 540 municipalities and counties in California, most have online codes and ordinances; however, approximately 40% of these legal materials state that they are not “official” and have a strong Web disclaimer about the use of the online version.

Approximately 50%  of these codes have copyright assertions.

When we tried to determine if these materials were available in bulk access, we contacted a few of these municipalities.  And, our small sampling of these online materials found that none provided bulk access.

A typical disclaimer on these municipal codes might read:

“This code of ordinances may not reflect the most current legislation adopted by the municipality.  These documents are provided for informational purposes only.  These documents should not be relied upon as the definitive authority for local legislation.  Formatting and pagination varies from the official copy.  The official printed copy should be consulted prior to any action being taken”

To purchase these codes in print, the price starts at approximately 100 dollars (and going up beyond that). 

At the state level, the California administrative code is provided for free online by West but there is a copyright assertion and the cost for a subscription to the official print version is approximately $3500 per year.

Title 24, the building code is published separately and not part of the California Code of Regulations website.  The FAQs on this site direct you to visit the California Building Standards Commission that links you out to the International Code Council’s copyrighted site where you can view only one section at a time of the building code.

[Although we have not yet done so, it might be interesting  to check to see how many standards incorporated by reference are available freely on the California regulations site.]

As to the Attorney General opinions in California: you can find these in official form in print for approximately $400. 

If you visit the free version online, there is this disclaimer:  “Disclaimer of Duty to Continue Provision of the Data:  Due to the Dynamic nature of the internet, resources that are free and publicly available one day may require a fee or restrict access the next.”  

One of the executive agencies in California had full-text of administrative decisions on their site; however, without any pagination – which would be required if you were to cite to it in CA courts.

As to the courts, to gain access to the full archive of California Supreme Court cases you must click “agree” to a license preventing you from using the data for “nonprofit or public use.”

Further, the court site states:  “it is not intended to function as an alternative to commercial computer-based services and products for comprehensive legal research.”

The  Court opinion archive is provided by Lexis under contract with the State of California.

There is a free, archive of recent slip opinions on the California Court site, without a license click agreement; however, these are filed ‘as-is’ with edited/corrected versions only appearing on the other website. The slip opinion archive states: “This archive is not provided for purposes of legal research.”

Outside of California, here are a few highlights from other states:

Apparently, Delaware and Utah are the only states authenticating their online administrative code with digital signatures or MD5 hash.

It appears that only 7 states have clearly made their online administrative code of regulations official. 

Similar to California Courts, New Jersey’s Administrative Code has a license agreement you need to click through to view, preventing you from using the data for “nonprofit or public use.”

Vermont does not have an Administrative Code of Regulations online.

If you want to secure bulk access to the Arizona code of regulations, it will cost you upwards of $15,000.   Although, there is no charge for postage and handling.

If you want to get bulk access in Indiana, it might take a bit of time as each request is looked at on a case-by-case basis. 

Most states simply do not provide information on gaining bulk access to their legal materials.

There are a number of inconsistent examples.

Although Arkansas’s code of regulations is not fully available online and their Rules register is only official in print form,  Arkansas’ online court opinions are official, authenticated, and utilize medium neutral citation formats. 

If you want to look at Alabama appellate and supreme court opinions on the web, you will need to pay a fee – these are not freely available on the courts’ site.

Connecticut copyrights its appellate court opinions.

In Idaho all cited opinions are posted on the court’s website the day of release; however, once in West’s Pacific/Idaho reporter, the opinions are removed from their website.  And, Idaho has created a digital repository to provide for permanent public access to state agency materials.

If you go to the Vermont Legislature’s web pages, they provide the text of the Vermont statutes.  However, it states: “The Vermont Statutes Online is an unofficial copy. . . provided as a convenience. It has not been edited for publication. The ‘official’ version . . . is online at LexisNexis Publishing.”  However, by statute, the Legislative Council of the Vermont General Assembly is required to “maintain official computerized databases of the Vermont Statutes Annotated” and post them on the Web “with a seal of authenticity.”  

In Ohio, there are digital signatures on recent Supreme Court opinions showing authenticity; however, only the printed decisions are deemed official.  It also appears that both the Ohio Revised Code and Administrative Code are not official and bear a copyright assertion.

Oklahoma has been ahead of the curve on online legal information, and for some time has made freely available all Supreme Court opinions since 1890 and criminal appeals cases since 1908  on the court website.

Each of Oklahoma’s county and district courts have their records available online though one of two Web sites. 

However, the Oklahoma Supreme Court recently issued a directive that “Public access to electronic case information is available on a case-by-case basis….. bulk distribution of electronic case information is not allowed.”

 And there is more, much more.  But enough for now.  I welcome your input and suggestions and corrections as this is a fluid and evolving project.

Citation Process for California Supreme Court Opinions

On the NOCALL list today was an interesting posting from Kerry Shoji, Paralegal/Research Analyst.

Kerry had recently asked questions on the NOCALL list about the citation process for the California Supreme Court.  Kerry then passed the questions along to the experts, Fran Jones, Director of Library Services, California Judicial Center Library and Edward Jessen, Reporter of Decisions.

Below is the text of Kerry’s questions and Mr. Jessen’s responses. [Reproduced with the permission Kerry Shoji and Edward Jessen.]

“How can you find out a California Supreme Court citation on a recently decided case?  I have the LEXIS citation, but I am curious:

1) How the official reporter volume/page number for the citation is assigned?

The California Official Reports publisher assigns volumes and page numbers because it is essentially a byproduct of the print composition process, and deadlines preclude much involvement in this function by the Reporter of Decisions.  But the publisher is contractually required to print opinions in the order received, and there are contractual requirements for the pagination of volumes.

2) How long does it take to go from slip opinion to the bound opinion?

For example, Official Reports advance pamphlet No. 16 will contain all published opinions filed between 5/17/10 and 5/25/10, and will be issued on 6/17/10.  Promptness is regulated by the Official Reports publication contract.*

Citations for opinions in that pamphlet, however, will be available on LexisNexis by approximately June 11.

3) How one can determine the official citation once bound?

Bound volumes, as a general rule, publish about 10 to 12 months after the last pamphlet issues with opinions  for a particular volume.  Citations, however, never change between advance pamphlets and bound volumes, except that superseded opinions (review granted, depublished, or rehearing granted) are omitted.

4) Do all the Westlaw or Lexis electronic references get converted to the official citation once the bound version is issued?

For the California Official Reports, there are several points in the editorial process leading to the final version of opinions in the bound volumes at which this office or the publisher would “convert” a Lexis or Westlaw cite to another California opinion to the Official Reports cite.  The LexisNexis version of that opinion would also then receive the Official Reports cite in place of the Lexis or Westlaw cite.  I cannot speak to what Westlaw would do in this situation because it is not the official version of opinions and we do not control content in the way we do for opinions on LexisNexis.”

*Special note: Peter W. Martin, Cornell Law School, has published in his Access to Law site many of the contracts between State courts and law report publishers, including California (2003).  There is also a great table showing these contracts, too.

What we don’t know….RECAP/Pacer Survey

At the NOCALL Spring Institute in March, I demonstrated the RECAP plug-in.  After the presentation, one attendee stopped by and suggested that not enough librarians are using the plug-in because they just don’t know about it.  I must admit that the comment surprised me — so, I decided to do a quick survey.

With the blessing of the folks at RECAP (CITP at Princeton), I created a super simple survey trying to see  if we (librarians) know about RECAP and if we do, do we use it and teach about it.  I created a survey on Zoomerang and sent the link to the following e-mail lists: LAW-LIB, NOCALL, and All-SIS, and also spread the word on Twitter.

As of May 15th, here is what the we saw from the survey:

There were 261 completed surveys.  Law firm librarians represented 18% percent of the respondents; academic law librarians represented 70%, and state/county/federal librarians represented 6% of the replies.

Ninety percent of the respondents said that they use PACER.

However, 42.4% of the 257 folks who answered the question “Have you ever heard of RECAP?” said “no”.   The academic law librarians comprised nearly 78 percent of the “no” votes (and 63% of the “yes” votes).   Seventy-three percent of the 45 law firm librarians who responded to this question had heard of RECAP.

Seventy-two percent of the respondents said that they didn’t have RECAP installed on any computers in their library.  And, of that group, 12% don’t use the plug-in because they use IE or Chrome for their browser (plug-in not compatible with those browsers);  15% don’t have the plug-in installed because their employers don’t allow it; and the largest part, 58%, don’t have it installed because they are unfamiliar with the plug-in.

And, the last question asked if respondents provided training on RECAP or taught RECAP in advanced legal research courses.  Only 6% of the respondents said “yes” to this question.  Ninety-four percent are not providing any training or instruction on RECAP.  (Note: We have been showing our students how to use RECAP and we find that our clinic students are often most receptive to this type of training.)

I hope that after reading this survey, more librarians might want to learn more about RECAP and try to use it at work and with their patrons.  Given the new look and feel of the PACER website (launched this weekend), it is good to know that the RECAP plug-in still works just fine.  What a good time to install RECAP.

Between a Rock and a Free Site

We are big fans of free and low-cost legal research alternatives here at LRP.  And, we share our enthusiasm with our students in Advanced Legal Research.

But what do you do when there are apparent discrepancies in the free sites that you steer your students to time and time again?

Here is the story:

A professor stopped by the library one day and started off by saying how great Cornell’s LII site is but was wondering about a potential error on their site.

What was the error?

In the Federal Rules of Appellate Practice, Rule 4: Appeal as of Right — When Taken, there is a section dealing with appeals in criminal cases.

In 2009, that rule was modified: defendant’s notice of appeal needs to be filed within 14 days of certain events.  The prior version of the rule required that this notice needed to be filed within 10 days.

The big change: 14 days now; before, 10 days.

As of May 13th, the version of FRAP Rule 4 on LII’s site still shows the text of the old rule.  The top of that page states that it is current through 2007.  (And, not 2009.)

I decided to look around at other important research sites and see what was online.

The Office of the Law Revision Counsel prepares and publishes the United States Code, and on their site (uscode.house.gov) they have the text of the code and the rules.  They also have the wrong version of FRAP Rule 4.  The LII folks work off of the House site, so it isn’t that surprising.  This House version has a currency date as of 1/2009 — the rule was changed in March, taking effect in December 2009.

However, another site at the US House of Representatives has it right.  On the House Judiciary Committee site, they have the correct version of the rule posted on their Procedural Documents page.

The Administrative Office of the U.S. Courts has the correct version posted on their Rules page.   I also checked a number of Federal Court websites and all had the current version.

The GPO Access site directs you to the most recent printed, official version of the US Code (2006), so this is out of date.  And, worth noting: “The information contained in the U.S. Code on GPO Access has been provided to GPO by the Office of the Law Revision Counsel of the U.S. House of Representatives.”   But, of course.   Also, FDSys has such a great interface and so much useful information, but it is only current through the last official supplement — missing the current version of this rule.

As to various commercial versions: Westlaw and Lexis have the correct version.  And, FastCase and CaseMaker also have the current version.

However, newcomer on the block, Bloomberg’s BLAW has a 1998 version — very out of date (and still with the 10 days instead of 14 days mistake, among others).

So, what is the right thing to say to your class?  Do we feed the research paranoia, as Bob Berring describes it, where students feel the need to double or triple check everything online on multiple sources?  Or do we frustrate the students with the caveat that sometimes even the best resources aren’t going to do the trick?

This is truly a teachable moment, but not the type of lesson I had in mind.

FJC Privacy Audit of PACER Documents

New from the Federal Judicial Center:

“A Memorandum to Honorable Reena Raggi, Chair, Privacy Protection Subcommittee [of the Judicial Conference Committee on Rules of Practice and Procedureregarding Social Security Numbers in Federal Court Documents,” by George Cort and Joe Cecil (Federal Judicial Center), April 5, 2010.

The summary states:

“The Center identified 2,899 documents with one or more unredacted Social Security numbers among the almost ten million documents filed in federal district and bankruptcy courts in a recent two-month period. Seventeen percent of these documents appeared to qualify for an exemption from the redaction requirement under the relevant privacy rules. An unknown number of the remaining documents may qualify for a waiver of the privacy protection under the rules, but we could not determine whether such a waiver applied to the documents identified in this study.”

More than One Document a Minute

The headline from the Internet Archive posting reads: “Millions of documents from over 350k federal court cases now freely available.”

The millions of documents are all from PACER by way of the RECAP plugin.

As the posting states:

RECAP is a Firefox Internet browser extension that allows users of the PACER to get free copies of documents they would normally pay for when the Archive has a copy, and if it is not available to then automatically donate the documents after they purchase them from PACER for future users. Therefore the repository on the Internet Archive grows as people use the PACER system with this plug-in. We are currently getting more than one document a minute and some large holdings are being uploaded. We hope that the government will eventually put all of these documents in an open archive, but until then this repository will grow with use.”

Wow.  Growing faster than one document a minute!  (Right now: stop what you are doing and check to see if you have the RECAP plugin installed on your machine — every little bit helps.)

To visit this collection and search the content, go to www.archive.org/details/usfederalcourts.  There you will be able to browse by date (the other browsing features aren’t operational).  You can also do an Advanced Search on the Internet Archive and keyword search through all the available materials by limiting to the Collection Type = usfederalcourts.   VERY COOL.

And, might I add: FREE!

I checked with the good folks who created RECAP at Princeton University’s Center for Information Technology Policy, and they said that for now the RECAP/Internet Archive collection of PACER dockets (specifically: just the high-level case metadata) are indexed and can be searched by the likes of Google, but the underlying dockets, documents and briefs are still hidden from the search robots because of privacy concerns.

Public Means Online

Today’s Washington Post features an editorial supporting the new Public Online Information Act, H.R. 4858.

[Rep. Steve Israel, D-NY] “has introduced the Public Online Information Act (POIA), a sensible and modest bill that could nevertheless be a catalyst for important changes in how the federal government thinks about and handles public information. It could also lead to greater transparency in the workings of the government.”

As the folks at the Sunlight Foundation have noted: “public means online.”

However, the realities of getting the bill passed means that it does have its limits.  Most notably, “public information generated by Congress, including real-time lobbying registrations, is exempt from the mandatory provision, as are public filings within the judicial branch.”

But with Law.gov and other transparency efforts ongoing, we can be hopeful for even bigger changes down the road.

Yesterday, Carl Malamud gave a rousing talk to the NOCALL Spring Institute about Law.gov.

[By the way, NOCALL throws down an amazing Spring Institute every year -- this year was no exception!  Besides the terrific parties, they always pull in a great range of speakers and topics, from Ryan Calo (on Privacy Tools) to Mark Sirkin (on New Roles in the Law Firm of the Future).  Many attendees spoke highly of the forum on the Google Book Settlement, featuring Mary Minow, Gary Reback and Andrew Bridges.  On Saturday, I enjoyed demonstrating the awesome RECAP plug-in -- hopefully, more folks will be downloading PACER court documents to the archive. ]

Malamud’s inspirational Law.gov talk got the crowd buzzing.  NOCALL members are already involved in the prototype of a national law inventory for the Law.gov effort.  And, invigorating talks like this one should help spread the word and add more volunteers to the project.    As Malamud mentioned, the inventory will help provide key metrics for the Law.gov report (for example: how many municipalities assert copyright over their regulations).

While the California legal inventory is now underway, more work is needed [READ: please contact me if you would like to volunteer to help!].  And, other AALL chapters/working groups should be starting their legal inventory projects very shortly.

For those who are still curious about Law.gov and for those who are contemplating volunteering for their own state legal inventory project(s), I encourage you to view at least one of Malamud’s Law.gov talks online and/or read his “By the People” pamphlet.

Stay tuned…As “public means online’, Law.gov equals change.

On PACER – New Letter from Senator Lieberman

Senator Lieberman recently sent his annual letter to Senate Appropriators detailing the funding needed for government management, which includes material on PACER.
(The full letter appears below.)

With regard to PACER, Senator Lieberman states: “As a result, funds collected by the $.08-per-page charge have been used for initiatives that are unrelated to providing public access via PACER and against the requirement of the E-Government Act. The Appropriations Committee should review the Judiciary Information Technology Fund Report provided each year to ensure the funds generated from PACER are only going to pay for the direct costs of disseminating documents via PACER, and not for additional items which I believe should be funded through direct appropriations.”

We will see what happens next….

For more commentary on this topic, see Steve Schultze’s Managing Miracles.

March 25, 2010

The Honorable Richard Durbin

Chairman

Subcommittee on Financial Services and General Government

Committee on Appropriations

184 Dirksen Senate Office Building

Washington, DC 20510

The Honorable Susan Collins

Ranking Member

Subcommittee on Financial Services and General Government

Committee on Appropriations

125 Hart Senate Office Building

Washington, DC 20510

Dear Chairman Durbin and Ranking Member Collins:

Thank you for affording me the opportunity to provide my views.  I hope the following recommendations and comments will assist you as your subcommittee deliberates on the Financial Services and General Government Appropriations Bill for Fiscal Year 2011.

Privacy and Civil Liberties Oversight Board

I remain deeply concerned that the Administration has not yet nominated anyone for the Privacy and Civil Liberties Oversight Board, created by the 2004 Intelligence Reform and Terrorism Prevention Act, and reconstituted by the 2007 Implementing Recommendations of the 9/11 Commission Act.  The 9/11 Commission recognized that without adequate oversight the vital work of combating terrorism could tread dangerously close to intruding on core rights and liberties, and urged creation of this Board to help advise on and review the nation’s policies against terrorism with an eye toward safeguarding key freedoms. While we applaud the hard work of the original Board, in 2007 Congress concluded that the panel needed more independence and reconstituted it as an independent agency outside the Executive Office of the President. Unfortunately, the effort to create a stronger Board has, thus far, resulted in no board at all. I once again urge the President to put forward nominees for the Board without delay, and I urge the Appropriations Committee to fund it at a robust level. The authorizing legislation originally recommended funding of $10 million by FY 2011. While it is questionable that a new Board could effectively spend that much in its first year, I recommend that the Board receive funding to begin as strongly as feasible, certainly well above the President’s request of $1.68 million.

Office of Electronic Government and the Electronic Government Fund

This year the Administration requested $35 million in the General Services Administration (GSA) budget for the E-Government Fund for the establishment of pilots relating to cloud computing, collaborative platforms, and transparency and participation. In FY 2009 the Administration rolled out a number of ambitious initiatives, including data.gov, the IT Dashboard, and apps.gov, which have increased transparency and have begun to illustrate the potential for reducing costs and increasing transparency across the government by using information technology. The additional funds requested for FY 2010 will be used to further modernize government systems and pave the way for greater savings. For that reason, I fully support the Administration’s request for $35 million for this effort.

In addition, the Administration has requested $50 million for the Integrated, Efficient and Effective Uses of Information Technology fund in the budget for the Office of Management and Budget (OMB). These funds would both further implement pilots originally developed under the E-Government Fund and assist with project management and guidance for information technology projects. While I believe this is an important goal and support the amounts requested, this funding should be included with the $35 million for the statutorily-created E-Government fund – which is required to report to Congress on its expenditures. Funding these initiatives, along with the additional project management tools, will lower costs and allow departments and agencies to provide additional services in less time. As a result, we are likely to see more results from our information technology expenditures and greater savings in future fiscal years.

Given the important role of the E-Government Office in managing these funds and its additional responsibilities, I also believe that the Congress should increase the appropriation for OMB to allow for additional staff for this office.  Currently, the E-Government Office has approximately 13 FTEs with the statutory responsibility to manage the information technology budget across the entire Federal government – which will add up to over $79 billion in the FY 2011 budget request. In addition, the E-Government Office has responsibilities – shared with the Department of Homeland Security – over the security of Federal information systems, but has limited staff to assist in this key priority. Given the office’s role, I recommend that the budget for OMB be increased by $3 million to allow for the hiring of additional staff in the E-Government Office.

Public Access to Court Electronic Records (PACER)

I have concerns about how the Administrative Office of the Courts is interpreting a key provision of the E-Government Act relating to public access to Court records. Given the transparency efforts that have been made a priority across the Federal Government – as well as the recent call in the FCC’s Broadband plan for increased online access to court records – I believe more attention needs to be paid to make these records free and easily accessible.

As you know, Court documents are electronically disseminated through the PACER system, which charges $.08-a-page for access. While charging for access was previously required, Section 205(e) of the E-Government Act changed a provision of the Judicial Appropriation Act of 2002 (28 U.S.C. 1913 note) so that courts “may, only to the extent necessary” (instead of “shall”) charge fees “for access to information available through automatic data processing equipment.” The Committee report stated: “[t]he Committee intends to encourage the Judicial Conference to move from a fee structure in which electronic docketing systems are  supported primarily by user fees to a fee structure in which this information is freely available to the greatest extent possible… Pursuant to existing law, users of PACER are charged fees that are higher than the marginal cost of disseminating the information.”

Since the passage of the E-Government Act, the vision of having information “freely available to the greatest extent possible” is far from being met, despite the technological innovations that should have led to reduced costs in the past eight years. In fact, cost for these documents has gone up, from $.07 to $.08-per-page. The Judiciary has attempted to mitigate the shortcomings of the current fee approach in a variety of ways, including limiting charges to $2.40-per-document and the recent announcement that any charges less than $10-per-quarter will be waived. While these efforts should be commended, I continue to have concerns that these steps will not dramatically increase public access as long as the pay-per-access model continues.

To move closer to the mandate of the E-Government Act, the Administrative Office of the Courts should reevaluate the current PACER pay-per-access model. Even to retrieve free materials such as opinions, PACER currently requires the individual to establish a PACER account. One goal of this review should be to create a payment system that is used only to recover the direct cost of distributing documents via PACER. That review should also examine how a payment system could allow for free bulk access to raw data that would allow increased analytical and oversight capability by third parties.

Additionally, in 2007, the Judiciary asked for and received written consent from the Appropriations Committees to “expand use of Electronic Public Access (EPA) receipts to support courtroom technology allotments for installation, cyclical replacement of equipment, and infrastructure maintenance.” As a result, funds collected by the $.08-per-page charge have been used for initiatives that are unrelated to providing public access via PACER and against the requirement of the E-Government Act. The Appropriations Committee should review the Judiciary Information Technology Fund Report provided each year to ensure the funds generated from PACER are only going to pay for the direct costs of disseminating documents via PACER, and not for additional items which I believe should be funded through direct appropriations.

Modernization of Acquisition Systems

I support the President’s request for an additional $20.5 million for the General Services Administration for the purpose of modernizing the Integrated Acquisition Environment (IAE), which consists of eight major data systems, including the Federal Procurement Data System, Federal Business Opportunities (FedBizOpps.gov), the Excluded Parties List, and the Past Performance Information Retrieval System.  These systems support over 40,000 federal procurement professionals, 600,000 vendors, over $523 billion in annual procurement spending, and over eight million transactions per year.  Unfortunately, despite depending on the same underlying data, these systems were developed over the years in a stove-piped manner and therefore are disjointed and difficult to use.  Modernization of IAE will help the federal acquisition workforce make smarter contracting decisions and ensure that contracts are not awarded to irresponsible parties or to companies that have been debarred or suspended.  In addition, providing easier access to information about federal procurement opportunities would enhance competition by attracting a larger pool of potential bidders.  Finally, a modernized IAE would provide greater transparency to the American public and the Congress on federal contract spending.  I am convinced that this investment in IAE will pay for itself over time.

Acquisition Workforce

The President’s budget requests $24.9 million for the General Services Administration for government-wide efforts to strengthen the acquisition workforce through better training, certification, and workforce management.  The number of acquisition professionals in the federal government simply has not kept pace with the explosive growth in federal contracting over the last decade.  Moreover, more than half of the acquisition workforce will be eligible to retire over the next eight years. We therefore are fast approaching a crisis unless we recruit and train a skilled workforce that can promote competition, get the best value for the government, and guard against waste, fraud and abuse in federal contracting.  I understand that there may be some unobligated balances in the Acquisition Workforce Training Fund that may be available to help fund the President’s proposed initiative. While taking those funds into account, I urge the Committee to provide a sufficient amount to fund the proposed initiative.

Office of Federal Procurement Policy

I am extremely concerned that the Office of Federal Procurement Policy (OFPP) within the Office of Management and Budget lacks adequate personnel to carry out its mission of providing overall government-wide direction for procurement policies, regulations, and procedures.  While total federal spending on goods and services has risen dramatically over the last decade, from $189 billion in 1999 to over $523 billion in 2009, the staffing level at OFPP has remained stagnant at roughly a dozen FTE’s, including administrative support.  Both under legislative mandate and at President Obama’s direction, OFPP is responsible for reducing waste and abuse in contracting by promoting competition, preventing misuse of cost-plus contracts, bringing rationale to the interagency contracting process, mitigating conflicts of interest, and ensuring that inherently-governmental work is performed by federal employees.  Each of these areas is highly complex and requires strong government-wide leadership from OFPP to bring greater efficiency and integrity to federal contracting.  I therefore recommend that, at a minimum, the appropriation for OFPP be doubled, from $3 million to $6 million.

United States Postal Service

The United States Postal Service (USPS or Postal Service) continues to experience accelerated declines in mail volume and revenue, primarily due to the current economic crisis and the electronic diversion of mail.  In fiscal year 2009, the Postal Service recorded a loss of $3.8 billion and USPS ended the first quarter of this fiscal year (October 1 to December 31, 2009) with a net loss of $297 million.  The Postmaster General recently indicated that, without substantial changes, losses will be even more substantial going forward.

Therefore, as Congress works with the Postal Service on long-term solutions, I recommend that we consider providing the Postal Service with additional financial relief in FY 2011.  One option, recommended by the Postal Service, is to allow USPS to restructure its required payments into the Postal Service Retiree Health Benefits Fund.  Currently, the Postal Accountability and Enhancement Act (P.L. 109-435) requires the Postal Service to pre-pay its retiree health benefits obligations for future retirees into the Fund, while it makes payments for current retirees.  Thus, restructuring the Postal Service’s payments into the Fund would provide USPS with financial relief during this economic downturn.

National Archives and Records Administration (NARA)

I support the $460 million in the President’s budget request for the National Archives and Records Administration (NARA). The role of the National Archives in protecting and preserving our national heritage continues to be critical – particularly as the number of records it preserves and protects increases exponentially. Furthermore, in recent years, NARA has received many additional responsibilities, including the establishment of the National Declassification Center last year and the creation of the Office of Government Information Services to oversee Freedom of Information Act activities government-wide. In 2008, NARA was designated as the lead agency for the implementation of the Controlled Unclassified Information (CUI) framework, which is intended to streamline the use of sensitive, unclassified information within the federal government.

I also believe that the appropriation for the National Historical Publications and Records Commission (NHPRC) should be increased from $10 million to $13 million. The NHPRC supports the efforts of NARA to preserve and publish any material relating to the history of the United States. In the last Congress, this Committee passed the Presidential Historical Records Preservation Act of 2008 (P.L. 110-404), which gave additional responsibilities to the NHPRC to make grants to preserve records of former Presidents, provide online access to the documents of the founding fathers, and create a database for records of servitude, emancipation, and post-Civil War reconstruction. I believe these important missions require additional funding for the Commission to allow it to also continue its traditional role in protecting the records that define this country.

* * * * *

I appreciate this opportunity to comment on issues of concern to the Committee on Homeland Security and Governmental Affairs.

Sincerely,

Joseph I. Lieberman
Chairman

The Constitutionality of Presidential Signing Statements

Faith Joseph Jackson, “The Constitutionality of Presidential Signing Statements: A Note on H.R. 5993 – The Presidential Signing Statements Act of 2008,” 35 Journal of Legislation 1 (2009).

Abstract:

This legislative note will examine H.R. 5993, the Presidential Signing Statement Act of 2008, by addressing the history of presidential signing statements, the use of presidential signing statements by recent administrations, and what gave rise to the American Bar Association Task Force on Presidential Signing Statements and Separation of Powers Doctrine.   This paper will also discuss the contents of H.R. 5993, the likelihood of it passing muster through Congress and the executive branch, and if so, its impact on current administration and its immediate successor.”