DENVER—Building on the recent faux right-wing outrage about Securities & Exchange Commission (SEC) employees looking at porn websites during working hours in 2008, "superlawyer" Kevin D. Evans, on behalf of his law firm, Steese Evans & Frankel PC, filed suit earlier this month seeking the names of said employees, claiming that since many of them are lawyers, they falsely billed the SEC for their porn-watching time.
The allegations against the SEC employees, recently resurrected by Sen. Charles Grassley (R-God's Country) in an attempt to distract Congress from enacting financial reform legislation, have already been investigated by SEC Inspector General H. David Kotz, who reported that most of the 33 porn-watchers have either resigned, been suspended or been reprimanded.
However, that wasn't good enough for Grassley, who demanded to be given the names of all 33 along with an explanation as to why different punishments were imposed on various members of the group.
Evans' lawsuit, however, takes a different tack. The firm filed a Freedom of Information Act request on February 4, 2010, seeking the same material Grassley has requested, and the SEC responded surprisingly quickly on March 18, listing various documents it would provide, but noting that "certain personal information ha[d] been redacted" as a "clearly unwarranted invasion of personal privacy" and because identification of the staffers "could conceivably subject them to harassment and annoyance in the conduct of their official duties and in their private lives."
But those reasons didn't cut any ice with Evans, who quoted a Supreme Court case to the effect that, "[T]he basic purpose of the FOIA is 'to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.' ... The SEC is wrong to claim that the withheld information pertaining to the misuse of public trust and taxpayer money by SEC personnel constitutes a 'private affair' or an 'invasion of personal privacy.' This is particularly true here, as SEC employees intentionally and deliberately took action that they admitted and knew was wrong at the time they engaged in such activity. Certainly, a public employee who knowingly and intentionally uses government (i.e., taxpayer financed) property to engage in conduct that the employee knows at the time to be wrong has no attendant claim to privacy with respect to such conduct, and thus access to such information cannot amount to a 'clearly unwarranted invasion' of the employee's 'personal privacy.' There simply is no privacy right or interest to search pornography on SEC computers, particularly during working hours."
Evans also denied that those employees who quit after their porn-watching activities were discovered could be harassed or annoyed "in the conduct of their official duties and in their private lives" since they no longer worked at the agency.
However, there's reason to suspect that Evans' FOIA request was less about effecting a public good and more about simple titillation.
"The documents the SEC did produce demonstrate that several unnamed SEC employees have been voracious voyeurs of pornographic and sexually explicit web sites using SEC computers during SEC work hours," he wrote in his firm's complaint. "Indeed, recent generic revelations to Congress (which the SEC failed to produce to SE&F) indicate that at least some of the unnamed SEC employees held high ranking positions, and the hours spent searching pornograpic and sexually explicit sites were shocking."
The complaint then lists 58 sites allegedly accessed by SEC employees, several of which were obviously devoted to gay or transsexual photos and discussions.
"Particularly in light of developments over the last several years, the SEC's performance of its statutory mandate has come under increasing scrutiny," he later continued, quoting the U.S. Department of Justice v. Reporters Committee for Freedom of the Press case. "How SEC employees use and, in this case misuse, working hours and government property is pertinent to that inquiry. Given the circumstances here, which obviously were more than passing or isolated indicents at the SEC ..., and the increasing scrutiny of the SEC based on its of-late questionable performance, the public has a right to know how the SEC dealt with the employees in question, who knowingly and intentionally cheated not only the SEC but the very public whose interests these employees were being paid (by taxpayers) to represent and protect."
Of course, the vast majority of this porn viewing took place during the administration of George W. Bush, who reportedly let it be known that oversight agencies like the SEC shouldn't be trying to do their jobs too well, lest their investigations get in the way of financial bigwigs like Bernie Madoff, Lloyd Blankfein (Goldman-Sachs) and Martin J. Sullivan (American International Group, Inc.). Hence, with little else to do, employees' porn viewing was perhaps inevitable.
Nonetheless, as ABC News reports, "less than 1 percent of the agency's 3,500 employees [were involved] but 17 of the alleged offenders were senior SEC officers whose salaries ranged from $100,000 to $222,000 per year."
"Most of these people were lawyers," Evans told Investment News. "If lawyers in a private practice engaged in this kind of activity, and billed clients during it, there would be disciplinary action at the very least. The fact that these were government officials doesn't exclude them."
Evans also said he plans to make the names of the employees public if his firm's suit is successful.