By Suzanne Kubota
Senior Internet Editor
FederalNewsRadio.com

The Securities and Exchange Commission is facing a federal lawsuit after it refused to turn over the names of employees found looking at porn on their federal work computers.

Debra Roth, partner at the law firm of Shaw, Bransford & Roth, explained to Federal News Radio that under Exemption 6 of the Freedom of Information Act “the government does not have to release information that it has if it would affect someone’s personal privacy, and the test is would it constitute a clearly unwarranted invasion of personal privacy.”

Over time, said Roth, the test of the rule has changed a bit to also take the position of the person into consideration. Roth said the test has become “the higher level the federal official is about the information you’re seeking, and whether the information will affect the public discourse, then you get the names. The lower the level the person, the less it will affect the discourse, the less likely you’ll get the names.”

If the government has records about you, said Roth, “which for these 33 employees at the SEC the answer to that is yes, the government has these investigative records (and) some of them were disciplined so there are disciplinary records. They are supposed to be notified by the agency if the agency’s about to release their names.”

Roth said any and every federal employee facing something similar should not wait for the required notification.

What I advise people is when you know there’s a FOIA request out there for information about you, don’t wait for the government to give you the opportunity to object. Get in there now. Usually you need a lawyer because it’s a legal argument. Make your objection.

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