STUDY TO IDENTIFY MEASURES NECESSARY FOR A SUCCESSFUL TRANSITION
TO A MORE ELECTRONIC FEDERAL DEPOSITORY LIBRARY PROGRAM (FDLP)
PRELIMINARY REPORT: TASK 9B: US COURT OF APPEALS' OPINIONS
As part of the Study, a task force examined issues surrounding
inclusion of electronic information in the FDLP when that
information is not already included in paper or microfiche
format. The slip opinions of the U.S. Court of Appeals were
selected as an example. This task force was lead by Gary Bowden,
Administrative Office of the Courts.
This preliminary report of the task force is being made available
for review and comment. Comments should be submitted by Friday,
February 16, 1996, by internet e-mail to study@gpo.gov, by fax to
FDLP Study at (202) 512-1262, or by mail to FDLP Study, Mail Stop
SDE, U.S. Government Printing Office, Washington, DC 20401.
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TASK 9B: Evaluate how United States Court of Appeals' published
slip opinions might be included in the Federal
Depository Library Program (FDLP) electronically,
although traditionally they have not been a part of the
FDLP in either paper or microfiche format.
BACKGROUND
All production of opinions are handled locally by the individual
courts of appeals. There is no centralized administrative control
over the slip opinion process, beyond the initial contracting
assistance provided by the Administrative Office (AO). All policy
regarding production and distribution is made by the appellate
court. The opinions are typically produced, and distributed to
the court and paid/free subscribers, by contract vendors.
Access to appellate opinions is available in both print and
electronic format. Historically, the courts have provided hard
copies of slip opinions to interested law schools within the
circuit, often in exchange for free subscriptions to the law
journal from the school. Other non-profit organizations also have
received free subscriptions to the published opinions. Opinions
always have been available to the public in the circuit
libraries.
Electronic access to appellate opinions is available through a
variety of sources. In addition to the electronic legal research
options available from numerous commercial vendors, all 12
circuits also use electronic bulletin board systems (BBS) as a
means of providing public access to recent published opinions.
Each circuit only has its circuit opinions available; however,
one circuit is attempting to pull in opinions from other circuits
in order to offer an expanded resource to the public. The BBSs
are set up on toll-free telephone lines and opinions are
primarily provided in ASCII or WordPerfect format. There is no
full text search capability. In most instances, there is some
general court information provided and an index of cases is
available to assist the user in their search. Typically users do
not read cases on the BBS, but download them to their PCs to
keep costs down and improve readability.
Each circuit has established its own local rules for access and
availability to these bulletin boards. The courts are allowed, by
Congress and subsequent Judicial Conference policy, to charge a
fee for access to appellate opinions. Currently, the appellate
courts are split evenly between courts that charge a fee and
those that provide free access. However, recent Judicial Council
actions across the country indicate that more circuits will be
applying the PACER (public access) fee to non-exempted callers.
The current PACER fee is $0.75 per minute, which is based on the
Judiciary's estimate of the cost to electronically disseminate
the information. Judicial Conference policy does allow courts
that charge the fee to exempt non-profit organizations from
paying it.
The Judiciary has no plans at this time to initiate an internal
process to collect opinions and post them on its own Internet Web
Site, which is still in its infancy. However, there have been
several developments recently in Internet access to the opinions.
One circuit is using a third party Internet host to upload its
opinions to the Internet. There is also a commercial vendor who
has added all appellate published opinions to its Internet Web
Site, purchasing opinions from the court when necessary and then
posting them to the site for free public use.
In addition, a consortium of prestigious law schools, generally
one from each circuit, is attempting to provide free access to
most appellate opinions through each school's Internet Web Site.
Circuits are being approached individually about participating.
This effort now has opinions from all but the First Circuit. The
member law schools have complete responsibility for retrieving
the opinions, processing them as they determine necessary and
uploading them to the Internet. The judiciary is monitoring this
project, and when requested to offer fee exemptions, has shown
support for its development.
FEDERAL DEPOSITORY LIBRARY DISSEMINATION
The Judiciary operates under an indefinite waiver from the
requirement to utilize the Government Printing Office's (GPO)
printing resources. This waiver was granted by the Joint
Committee on Printing in 1985 and does require that the Judiciary
participate in the FDLP by providing copies of opinions to all
requesting libraries. The Judiciary has worked with GPO to
implement this relationship; however, to date no agreement has
been reached on an efficient and effective means for distribution
of thousands of opinions each year.
In 1994, serious negotiations began in order to determine how
opinions could be distributed electronically, as the Judiciary
recognized that this was the only efficient means of handling the
large volume of opinions. However, this project has been delayed
in recognition of GPO efforts on setting up its Web Site, the
court's progress at establishing a bulletin board in each
circuit, and now the current GPO study.
DISSEMINATION ALTERNATIVES
Alternative A
The Judiciary could provide electronic versions of the slip
opinions to GPO, which would in turn add them to the GPO Access
Web Site as full-text searchable databases. Due to the
decentralized nature of the Judiciary, there is no guarantee all
court of appeals will participate. Nor can the individual
appellate courts be forced to comply with a request to send the
opinions to GPO or the AO. Therefore, under this alternative it
would be necessary for the Administrative Office to collect the
opinions and send them to GPO. The Judiciary would establish a
reimbursable agreement with GPO to pay the costs of routine
preparation, conversion, and storage of the electronic data.
Benefits
The printing waiver granted to the Judiciary is
continued.
Public access is improved, a goal the Judiciary has
pursued actively in recent years.
As a full-text searchable database, opinions are more
useful.
Long term accessibility is maintained by GPO and the
FDLP.
Disadvantages/Problems
Collecting opinions from the courts and providing them
to GPO will require AO staff resources to develop the
opinion collection application and monitor the daily
collection. This will mean increased costs for the AO
which seeks to control any new program costs.
Increased costs would be incurred by the Judiciary for
the data formatting and storage done by GPO. This
would not be true if the Electronic Federal Depository
Library Program Transition Plan is approved, in which
case costs for conversion and storage would be paid for
by the FDLP appropriation.
Unless there is a time delay in mounting the opinions
to GPO Access, there is a possibility that including
the opinions in the FDLP will result in lost revenue.
The Judiciary now is able to charge access fees to
information users that will cover the cost of
dissemination. These funds have been used by the
Judiciary to fund various electronic public access
projects, including the appellate BBS. The availability
of slip opinions on GPO Access may reduce current
revenue received from BBS users who will turn to the
GPO Web Site to get their information free of charge.
This will limit funds available to the Judiciary to
pursue future electronic access projects.
Alternative B
The Judiciary could provide electronic versions of the slip
opinions to GPO, which would in turn add them to the Federal
Bulletin Board for depository access.
Benefits
The printing waiver granted to the Judiciary is
continued.
Public access to opinions is improved by having one
central location for all opinions.
Long term accessibility is controlled by GPO and the
FDLP.
No additional conversion or storage costs would be
incurred by the Judiciary.
Disadvantages/Problems
As the individual appellate courts cannot be forced to
comply with a request to send the opinions to GPO or
the AO, centralized collection of opinions by the
Administrative Office would be necessary. This will
mean increased costs for the AO.
There is a possibility that including the opinions in
the FDLP will result in lost PACER revenue.
Only about 341 depository libraries are registered to
use the Federal Bulletin Board.
Opinions would be available only as ASCII or
WordPerfect files making them less useful than a full-
text searchable database.
Alternative C
The Judiciary has experienced general acceptance and broad use of
the existing BBS. This could be made the center of the FDLP
electronic access program. Depository libraries could be offered
free access to the opinions on each circuit's BBS. A user from a
home PC may be limited to accessing the BBS through a depository
library if this is possible. The GPO Locator could direct users
to the Appellate BBS for slip opinions.
Benefits
The printing waiver granted to the Judiciary is
continued.
Public access to opinions is improved.
There is no need to establish a centralized collection
method, therefore no additional costs are incurred by
the AO.
Additional costs for BBS and new password maintenance
and any additional phone lines or requirements for
larger PCs for the BBS could be met with existing
electronic public access (PACER) funds.
Disadvantages/Problems
With multiple locations, it is more difficult for users
to locate the information they need.
Opinions would be in ASCII and WordPerfect format, so
text searching would not be available.
Depository libraries would have to register and become
familiar with multiple bulletin board systems.
Long term accessibility is determined by each circuit
and cannot be guaranteed.
Alternative D
The Judiciary could support its own Internet Web Site to collect
and store opinions. The opinions would be full text searchable.
The GPO Locator would direct users to the Judiciary Web Site for
opinions.
Benefits
Public access to opinions is improved.
The printing waiver granted to the Judiciary is
continued.
Security and control of the information would be
controlled by the AO.
The visibility and image of the Appellate Courts and
the Judiciary is improved.
Costs for maintaining opinions on the Web Site would be
offset in part by other applications the site would
provide.
As a full-text searchable database, opinions are more
useful.
Disadvantages/Problems
As with Alternative A, the individual appellate courts
cannot be forced to comply with a request to send the
opinions to the AO. Therefore costs would be incurred
by either the court's staff or AO staff to collect and
format the opinions for dissemination.
Unless their is a delay in mounting opinions to the AO
Web Site, revenue might be lost from users of the BBSs
if the information is provided free of charge.
Alternative E
The law school consortium project is the leading effort to
consolidate the slip opinions on the Internet. The Judiciary
could endorse the law school consortium project and create a
partnership between the consortium, Judiciary/AO, and GPO. Rather
than the Judiciary or GPO maintaining the data, the consortium
would provide access to the opinions. The GPO Locator would refer
users to law school Web Sites. Currently, the consortium schools
retrieve opinions from their local circuit BBS and if opinions
are needed from another circuit the user is transparently
directed to the other law school Web Site with the requested
opinions.
Benefits
The printing waiver granted to the Judiciary is
continued.
Public access to opinions is improved.
There is no increase in the resources needed by the
Judiciary.
This information service will be maintained and
improved by the laws schools.
There is some time delay in opinion availability. This
would reduce the amount of revenue lost due to
inclusion of opinions in the FDLP.
Disadvantages/Problems
Depository access to opinions would not be as timely.
The Judiciary and FDLP are dependent on the law schools
to maintain access to the opinions. There is no
guarantee that opinions will be available for long term
access. Arrangements concerning this issue would have
to be made with the participating law schools before
GPO could endorse the project.
Not all circuit opinions are available through the
consortium at this time.
Each of the laws schools determine how they wish to
format the opinions. There is no standard format or
appearance.
Information is located at several sites. The user must
know which circuit issued the opinion they are looking
for in order to find it. The GPO Locator could help
overcome this problem.
ISSUES TO BE ADDRESSED
In reviewing alternative methods for electronically disseminating
slip opinions to the public, a list of issues has developed. Some
of these issues already were raised during the development of the
BBSs and were handled according to the interests of the circuits.
Others will be more important should the Judiciary, through the
Administrative Office, determine it is in its interest to develop
a centralized access point.
Long-Term Access
How long are opinions maintained online? Can/should there be
some type of electronic archiving process? What organization
has responsibility for creating an electronic archive if one
is necessary? Is there demand for near line access such as
CD-ROM?
Requirements for Electronic Access
Should electronic access be developed to assist in legal
research or is it strictly viewed as a dissemination
process? Legal research requires full text search software
and access to historical records, both of which add
significant costs to making opinions available
electronically.
Need and Demand for an Alternate Method of Dissemination
With the current variety of non-profit and commercial
sources for slip opinions, is it necessary to develop
another alternative through GPO or the Judiciary? Is there
market demand that is not being met by the current
alternatives?
Ensuring the Integrity of Data
What controls exist in any electronic system to ensure
integrity of data? Is there a need to have "true" or
"certified" electronic versions of slip opinions? Since each
circuit formats its decision uniquely, in order to provide
an accurate and exact copy Adobe Acrobat Portable Document
Format files would be needed.
Costs for Dual Format Distribution
The Judiciary will continue to have a demand for paper
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Judy Russell <jrussell@gpo.gov>
Comments should be submitted by Friday, February 16, 1996, by
internet e-mail to study@gpo.gov, by fax to FDLP Study at (202)
512-1262, or by mail to FDLP Study, Mail Stop SDE, U.S.
Government Printing Office, Washington, DC 20401.
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