Testimony of Chairman Gary Gensler Before the U.S. House Committee on Oversight and Government Reform, Washington, DC

September 10, 2013

Good morning Chairman Issa, Ranking Member Cummings and members of the Committee.

Thank you for holding this hearing on promoting transparency in government.

Promoting transparency in government is critical so that the public can have a clear window into and participate in the decision-making of their government. The Federal Records Act is key to ensuring for such transparency. The Committee’s work has brought this matter into sharper focus.

I joined the Commodity Futures Trading Commission (CFTC) in May of 2009 in the wake of the worst financial crisis in 80 years. Eight million Americans lost their jobs.

The remarkably dedicated CFTC staff have worked around the clock to bring much-needed reforms to the swaps market, which was at the center of the crisis. As we worked to implement reforms, we also took numerous steps to bring greater transparency to the work of the CFTC. We have, among other things:

• Voluntarily posted more than 2,200 external meetings on our website;
• Increased by nearly tenfold the number of public Commission meetings where rules are openly debated; and
• Initiated public roundtables – holding nearly two dozen – to facilitate public interaction on matters before the Commission.

My CFTC colleagues and I rolled up our sleeves and worked day and night. Though I used my official e-mail account far more than my personal e-mail, to get the job done I did routinely engage with CFTC staff and others through my personal e-mail, particularly outside normal business hours. Having come to this job after years of not working in a traditional office setting and primarily being a single, stay-at-home dad, I was not attuned to the ways of accessing work e-mail at home. At the CFTC, we didn’t have a robust training program – and I personally did not receive training – on either remote access or federal records.

As head of the agency, I take full responsibility with regard to records management, training and promoting transparency at the CFTC.

I want to thank the agency’s Inspector General who highlighted in a May 2013 report that it is better to avoid using personal e-mail, even though there is no law prohibiting it.

The IG reported that I used my official CFTC e-mail account “far more frequently” than my personal e-mail, as he counted approximately ten times more e-mails using my CFTC e-mail as compared to my personal e-mail. He also reported that there was “no indication that the Chairman was attempting to hide the use of his personal e-mail from other CFTC employees in an attempt to conduct ‘secret’ official business.” In a subsequent letter to members of Congress, the IG said of my personal e-mail use, “We do not believe it violated any federal statute.”

When this Committee sought e-mails from my personal account, I immediately tasked staff with gathering and delivering all responsive documents.

We provided approximately 11,000 e-mails together with some 3,000 attachments that were sent to, originated from, or copied to my personal e-mail. Approximately 99 percent of these were exchanged with another government official and were on federal systems. Approximately 97 percent were sent to or received from CFTC staff and were on CFTC systems. The remaining documents that were not already at the CFTC are now on CFTC systems. I have directed staff to ensure that all of these documents are filed in a CFTC recordkeeping system as appropriate.

Moving forward, though, I believe that we can and need to do better.

First, I have directed staff to revise and tighten the CFTC e-mail policy, including appropriately restricting the use of personal e-mail. I want to thank David Ferriero, Archivist of the United States, who has agreed to make his staff available to ensure that as we revise our policies, they are in accordance with the Archivist’s guidance.

Second, I have directed the CFTC’s Executive Director and General Counsel to significantly enhance the agency’s training on the Federal Records Act and transparency in government, both for new staff as they arrive and for existing staff. Further, to promote an environment that supports telework and flexible schedules, we also must ensure staff are properly trained on how to access official e-mail remotely.

Third, while we’ve already made some significant changes at the CFTC with regard to enhancing technology, I have directed staff to do more to make these tools flexible and efficient, particularly with regard to access and recordkeeping. I also fully support devoting resources to meet the National Archives and Records Administration’s goals for Capstone electronic e-mail retention by government agencies.

Ensuring full compliance with the Federal Records Act and other transparency laws is critical to the important work of the CFTC. It is critical in maintaining the public’s faith in and understanding of the CFTC.

Thank you.

Last Updated: September 10, 2013