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SEC OKs requests for contractor porn-viewing data

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  1. Freedom of Information
In the wake of the U.S. Supreme Court's decision in FCC v. AT&T, the U.S. Securities and Exchange Commission granted…

In the wake of the U.S. Supreme Court's decision in FCC v. AT&T, the U.S. Securities and Exchange Commission granted a request for the company names of SEC contractors and the office locations where employees were disciplined for accessing pornographic sites at work.

Denver attorney Kevin Evans requested last year the names and job descriptions of SEC employees and employees of SEC contractors who were caught viewing pornography at work. The agency denied the request, claiming the release of the names would violate the workers' privacy rights. After Evans filed suit, the SEC revealed that 24 employees were involved, identified the grade level of the employees and disclosed the SEC's disciplinary action. The federal district court in Colorado ruled that the public has no right or interest in the names of any of the SEC employees involved in the activity, but reserved ruling on whether Evans was entitled to the names of the contractors.

Rather than appeal the decision, Evans filed a second request on Dec. 7, 2010, asking for the names of each contractor whose employees were found to have engaged in the activity, the office locations of the 24 SEC employees who engaged in the conduct, and the amount of time spent by each employee and SEC contractor on such activity.

The agency denied Evans' request on Jan. 20, 2011. The SEC said that access to the first two requests were exempt under Exemptions 6 and 7(C) of the federal Freedom of Information Act. Exemption 6 allows an agency to withhold information that would constitute an unwarranted invasion of personal privacy, and Exemption 7(C) permits the withholding of records or information compiled for law enforcement purposes to the extent that the production of such records could reasonably be expected to constitute an unwarranted invasion of personal privacy. The agency held that both exemptions were implicated because the release of the requested information constituted an unwarranted invasion of personal privacy. Access to the third request was denied because the agency could not locate or identify the proper records.

Evans appealed the decision to the general counsel's office that same day, questioning the agency's application of the exemptions to his requests. Evans received a letter from the SEC informing him that the agency had extended its time to respond to his requests.

On March 1, the Supreme Court ruled on FCC v. AT&T, rejecting AT&T's argument that, as a corporation, it had personal privacy rights that could be invaded by the release of records. The Court held that there is no corporate right to privacy under Exemption 7(C), as the term "personal" refers only to individuals.

In light of the Supreme Court decision, Evans sent a letter to the agency informing them of the case. "I write to remind the SEC of the unanimous (8-0) decision of the United States Supreme Court yesterday," he said.

In deciding to raise the issue in his letter on March 2, Evans said he acknowledged how the FCC took a drastically different approach than the SEC took in responding to similar request. The SEC took a position that the names of corporations are undiscoverable under Exemption 7, while the FCC held that the definition of "personal privacy" did not extend to corporations. "The left hand of the government can't get on the same page as the right hand because you have two government agencies taking a complete opposite position," Evans stated.

On March 3, the SEC released the names of corporations contracted by the SEC whose employees viewed pornographic sites and released the locations of SEC offices where the activity occurred. In its release letter, the agency said the reason for its decision was because Evans' request did not implicate privacy interests because he was not seeking any association between an individual's name and either the office or contractor at the time of the incident.

Evans is confident that FCC v. AT&T played an instrumental role in the release of the requested documents. "We all knew that the Supreme Court was [going to] be issuing an opinion on [FCC v. AT&T] soon. I think that they were, quite frankly, waiting to see what the outcome was before they produced and when the outcome wasn't helpful to them and they had no basis upon which to continue to refuse to provide the information we desired," he said.