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85–906 PDF 2013

PREVENTING VIOLATIONS OF FEDERAL 

TRANSPARENCY LAWS 

HEARING 

BEFORE THE

COMMITTEE ON OVERSIGHT 

AND GOVERNMENT REFORM 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

SEPTEMBER 10, 2013 

Serial No. 113–64 

Printed for the use of the Committee on Oversight and Government Reform 

( 

Available via the World Wide Web: http://www.fdsys.gov 

http://www.house.gov/reform 

(II) 

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM 

DARRELL E. ISSA, California, Chairman 

JOHN L. MICA, Florida 

MICHAEL R. TURNER, Ohio 

JOHN J. DUNCAN, JR., Tennessee 

PATRICK T. MCHENRY, North Carolina 

JIM JORDAN, Ohio 

JASON CHAFFETZ, Utah 

TIM WALBERG, Michigan 

JAMES LANKFORD, Oklahoma 

JUSTIN AMASH, Michigan 

PAUL A. GOSAR, Arizona 

PATRICK MEEHAN, Pennsylvania 

SCOTT DESJARLAIS, Tennessee 

TREY GOWDY, South Carolina 

BLAKE FARENTHOLD, Texas 

DOC HASTINGS, Washington 

CYNTHIA M. LUMMIS, Wyoming 

ROB WOODALL, Georgia 

THOMAS MASSIE, Kentucky 

DOUG COLLINS, Georgia 

MARK MEADOWS, North Carolina 

KERRY L. BENTIVOLIO, Michigan 

RON DESANTIS, Florida 

ELIJAH E. CUMMINGS, Maryland, Ranking 

Minority Member 

CAROLYN B. MALONEY, New York 

ELEANOR HOLMES NORTON, District of 

Columbia 

JOHN F. TIERNEY, Massachusetts 

WM. LACY CLAY, Missouri 

STEPHEN F. LYNCH, Massachusetts 

JIM COOPER, Tennessee 

GERALD E. CONNOLLY, Virginia 

JACKIE SPEIER, California 

MATTHEW A. CARTWRIGHT, Pennsylvania 

MARK POCAN, Wisconsin 

TAMMY DUCKWORTH, Illinois 

ROBIN L. KELLY, Illinois 

DANNY K. DAVIS, Illinois 

PETER WELCH, Vermont 

TONY CARDENAS, California 

STEVEN A. HORSFORD, Nevada 

MICHELLE LUJAN GRISHAM, New Mexico 

LAWRENCE J. BRADY, Staff Director 

JOHN D. CUADERES, Deputy Staff Director 

STEPHEN CASTOR, General Counsel 

LINDA A. GOOD, Chief Clerk 

DAVID RAPALLO, Minority Staff Director 

(III) 

C O N T E N T S 

Page 

Hearing held on September 10, 2013 ..................................................................... 1 

WITNESSES 

The Hon. Gary Gensler, Chairman, U.S. Commodity Futures Trading Commission 

Oral Statement ................................................................................................. 6 

Written Statement ............................................................................................ 8 

The Hon. Lisa P. Jackson, Vice President of Environmental Initiatives, Apple 

Inc., former Administrator, U.S. Environmental Protection Agency 

Oral Statement ................................................................................................. 11 

Written Statement ............................................................................................ 13 

Mr. Jonathan Silver, Visiting Distinguished Senior Fellow, Third Way, 

Former Executive Director Loan Program Office, U.S. Department of Energy 

Oral Statement ................................................................................................. 16 

Written Statement ............................................................................................ 18 

Mr. Andrew McLaughlin, Senior Vice President, Betaworks, Former Deputy 

Chief Technology Officer, Executive Office of the President. 

Oral Statement ................................................................................................. 20 

Written Statement ............................................................................................ 22 

The Hon. David S. Ferriero, Archivist of the U.S. 

Oral Statement ................................................................................................. 26 

Written Statement ............................................................................................ 28 

APPENDIX 

Bush Aides’ use of GOP e-mail Probed .................................................................. 78 

U.S. Senate Environment and Public Works Committee Minority Report ......... 80 

Response letter to Chairman Issa from Mr. Barry Coburn .................................. 110 

(1) 

PREVENTING VIOLATIONS OF FEDERAL 

TRANSPARENCY LAWS 

Tuesday, September 10, 2013, 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM, 

WASHINGTON, D.C. 

The committee met, pursuant to call, at 9:05 a.m., in Room 2154, 

Rayburn House Office Building, Hon. Darrell E. Issa [chairman of 

the committee] presiding. 

Present: Representatives Issa, Mica, McHenry, Jordan, Gosar, 

DesJarlais, Gowdy, Bentivolio, Cummings, Maloney, Connolly, 

Davis, and Lujan Grisham. 

Staff Present: Ali Ahmad, Majority Senior Communications Advisor; Molly Boyl, Majority Deputy General Counsel and Parliamentarian; Lawrence J. Brady, Majority Staff Director; Caitlin Carroll, 

Majority Deputy Press Secretary; Sharon Casey, Majority Senior 

Assistant Clerk; Steve Castor, Majority Chief Counsel; Drew 

Colliatie, Majority Professional Staff Member; John Cuaderes, Majority Deputy Staff Director; Brian Daner, Majority Counsel; Jessica L. Donlon, Majority Senior Counsel; Adam P. Fromm, Majority 

Director of Member Services and Committee Operations; Linda 

Good, Majority Chief Clerk; Christopher Hixon, Majority Chief 

Counsel for Oversight; Michael R. Kiko, Majority Staff Assistant; 

Jim Lewis, Majority Senior Policy Advisor; Mark D. Marin, Majority Deputy Staff Director for Oversight; Tegan Millspaw, Majority 

Professional Staff Member; Ashok M. Pinto, Majority Chief Counsel, Investigations; Jeffrey Post, Majority Professional Staff Member; Jonathan J. Skladany, Majority Deputy General Counsel; Rebecca Watkins, Majority Communications Director; Jedd Bellman, 

Minority Counsel; Krista Boyd, Minority Deputy Director of Legislation/Counsel; Julia Krieger, Minority New Media Press Secretary; 

Elisa LaNier, Minority Director of Operations; Una Lee, Minority 

Counsel; Dave Rapallo, Minority Staff Director; Donald Sherman, 

Minority Counsel; and Daniel Roberts, Minority Staff Assistant/ 

Legislative Correspondent. 

Chairman ISSA. The committee will come to order. 

The Oversight Committee exists to secure two fundamental principles: first, Americans have a right to know that the money Washington takes from them is well spent and, second, Americans deserve an efficient, effective Government that works for them. Our 

duty on the Oversight and Government Reform Committee is to 

protect these rights. Our solemn responsibility is to hold Government accountable to taxpayers, because taxpayers have a right to 

know what they get from their Government. It is our job to work 

2 

in partnership with citizen watchdogs to deliver the facts to the 

American people and bring genuine reform to the Federal bureaucracy. 

Today, pursuant to that mission statement, the Oversight Committee meets to follow up on our commitment for openness, transparent and, in fact, compliance with rule of law. The committee is 

responsible for protecting the integrity of all of Congress’ oversight 

capability. Citizens and journalists use the Freedom of Information 

Act, often called FOIA, but that statute allows no access to private 

emails. And yet it has become habitual for high-ranking and obviously, trickle-down, low-ranking individuals to simply, either out of 

laziness or in order to circumvent later discovery, sometimes by 

this committee, sometimes by the public, sometimes, quite frankly, 

by their own bosses, the Federal Records Act, the Presidential 

Records Act, and the intent of Congress. 

Although the Federal Records Act and the Presidential Records 

Act do not apply to all Federal employees, nor should they, nor is 

it their intention to have it, communication of official activity is in 

fact a property of the agency in which people work. The computers 

that you do business on, if you are a Federal employee, or even a 

contractor acting in a similar role, is in fact a Government asset, 

and the Government has a right to know and the Government has 

a responsibility to be able to respond to FOIA of the public and 

journalists, Congress, but, most importantly, the inspector generals 

themselves. 

The fact is that IGS’ investigations are inherently less successful 

if they are denied access to the very material that would show the 

history and the activity of individuals. Years ago someone might 

pull the carbon copy and simply destroy it. At that time it was an 

easy and willful act. But today simply doing it on private email and 

then routinely deleting, most people don’t feel that they are doing 

anything wrong, but they are. 

This trend very clearly began, according to our investigation, in 

the later part of the Bush Administration. One of my predecessors, 

Mr. Waxman, looked deeply into the dual use by the previous administration where individuals, in order to comply with Government versus political activity in the White House, used an RNC account completely separated from the official account. Additionally 

during that time they blocked the use of Gmail and Hotmail and 

so on from the White House. Yet, Mr. Waxman made a point many 

times in this hearing room that, in fact, there was a question about 

whether or not this practice was acceptable, honest, or consistent; 

and he even sent subpoenas for the purpose of receiving the Republican National Committee’s documents. 

I disagreed with him on that, because the law clearly said that 

the White House had a right to do political activities, there were 

individuals designated who had that right, and there appeared to 

be an appropriate firewall. 

That investigation, in my opinion, is not conclusive. But it is a 

far cry from what began at the moment that Ms. Jackson entered 

the EPA. The EPA already had a 2008 study, I repeat, a 2008 

study, in the later years of the Bush Administration, that showed 

they did not have the control system in place to ensure that they 

were capturing the information. This in no part has nothing to do 

3 

with who was in the White House; it had to do with the ease and 

simplicity of using private emails. Most people in America today 

understand that almost any smartphone can not just do a primary 

email, but multiple emails; whether it is a BlackBerry, an Android, 

or an iPhone. 

All of this technology is the reason we are here today. The individuals that are here today all stand, at least a portion of them, 

as individuals who have not complied with the Federal Records 

Act, who have clearly circumvented that. We are not here to indict 

individuals, though. Our witnesses today are here because we want 

to show a pervasive problem that began at the sunset of the Bush 

Administration or the dawn of the Obama Administration, but has 

not been corrected; in fact, has proliferated. 

This committee has an absolute responsibility to either change 

the behavior or change the law, or both. It is our commitment to 

do that. It is the commitment of this President, orally and in writing, to be the most transparent in history. Transparency requires 

two things: one, that you let the sun shine in; and, secondly, that 

the information be available in the sunlight. 

The fact is when private emails are used and often deleted, they 

eliminate the ability, even when the sun shines in, to provide it. 

We will hear today that all emails have been accounted for for 

many individuals. I have to tell you it simply isn’t true. What has 

happened is all emails that can be found through ordinary efforts 

have been found. But very clearly emails have been lost. During 

the last two administrations ago, again, under Mr. Waxman, we insisted in this committee that the White House spend tens of millions of dollars to replicate official emails that were lost during the 

conversion from Lotus Notes to Microsoft Office; millions and millions of dollars simply to gather a few emails and make sure none 

were lost for future generations. To me, that says it has been important to this committee no matter who is in the chair; and that 

is not going to change. 

Particularly important to us is that, in fact, education within the 

Federal workforce is not sufficient and, and I think Mr. Cummings 

will join me in this, from the time that we sat on this dais together, 

he and myself, we have heard the same excuse from one part of 

Government after another, and that is it is too difficult to get into 

my official system. 

This committee also has primary responsibility for cybersecurity. 

Let me assure you of one thing. We cannot have greater security 

of Federal records if, in fact. Gmail, Hotmail, or a host of other 

sites are in fact not even under Federal control and have important 

information. 

To that end, I have offered legislation, and I believe that this 

committee will in fact see that in this Congress legislation in support of the President and the Administration’s effort to make real 

and lasting change will be enacted. 

The committee, again, has examined violations of this Federal 

transparency under both Republican and Democratic administrations. It is the new Internet, the smartphone, and the ease of these 

activities that has ultimately made it this pervasive. I hope that we 

will continue to see that H.R. 1233 and 1234 become law. But it 

will only be a combination of that and sincere effort by the AdminVerDate Aug 31 2005 10:45 Dec 18, 2013 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 C:\DOCS\85906.TXT APRIL
4 

istration, by agencies large and small, to capture information and 

to ensure that ‘‘complexity or difficulty’’ of getting into official 

emails is no longer an excuse heard by this committee or any other 

committee of Congress. 

And certainly I want to say for the members of the press who 

will be listening and seeing this, our greatest effort is to ensure 

that their FOIAs are, in fact, a complete search of the Federal 

record. 

With that, I want to thank my ranking member for being a partner in this effort and I will yield back. 

Mr. CUMMINGS. Thank you very much, Mr. Chairman, and good 

morning to everyone. Mr. Chairman, thank you for holding this 

hearing this morning. 

One of the things that I am hoping that each witness will do, as 

I listened to the chairman’s statement, I am always very careful 

about people’s reputations. This is very important to me. We have 

one life to live. This is no dress rehearsal and this is that life. So 

I want to make sure that if you did not intend to circumvent the 

records and transparency laws, I would appreciate it if you would 

tell us that when you testify, because I don’t want that to be out 

there if it is not accurate. 

Although some may suggest that the committee’s focus on Federal employees using personal email accounts seems trivial, especially in light of the grave national security questions Congress is 

currently facing. I believe Government transparency is a significant 

matter that potentially affects every policy we implement. With 

that, I agree with the chairman. 

For this reason, I support responsible efforts to ensure that our 

Government is operating in a transparent manner, and I have advocated strongly for this committee to exercise its jurisdiction to 

conduct robust oversight aimed at improving transparency. 

Over the past five years, our Nation has made great strides towards these goals, and we should acknowledge those improvements. Any suggestion that the Obama Administration is somehow 

less transparent or less compliant with Federal records laws than 

the previous administration fails to recognize reality. During the 

Bush Administration, as the chairman has stated, the White 

House— well, he didn’t state this, but let me tell you, for your information. 

During the Bush Administration, the White House lost hundreds 

of days of official emails and top officials routinely used their Republican National Committee email accounts for official business. 

An investigation by this committee revealed that of 88 officials who 

used RNC email accounts for official business, no emails were preserved for 51 of them. 

I would like to enter into the record an article from the Associated Press, dated 2007, which said this: ‘‘the White House said 

Wednesday it had mishandled Republican Party-sponsored email 

accounts used by nearly two dozen presidential aides, resulting in 

the loss of an undetermined number of emails concerning official 

White House business.’’ 

I ask that that article be admitted. 

Chairman ISSA. Without objection, so ordered. 

Mr. CUMMINGS. Thank you very much, Mr. Chairman. 

5 

Those emails involved the U.S. attorney firings, the Jack 

Abramoff scandal, and a host of other matters, and they were lost 

not for a day, not for a year, but forever. These systemic deficiencies prevented Congress and the American people from fully 

understanding how their Government was operating at the highest 

levels. 

In contrast, President Obama has taken significant steps to improve records management. The White House email system now 

automatically preserves all emails from White House accounts. On 

November 28, 2011, President Obama became the first President 

since Truman to issue a directive to agencies on managing Federal 

records. As we will hear today, the President instructed the archivist and the director of OMB to craft a 21st century framework to 

improve agency performance and begin managing email records in 

an electronic format by 2016. 

So is the Obama Administration more transparent than its predecessor? In my opinion, absolutely. Can we do more to increase 

transparency and compliance with Federal records laws? Absolutely. And we must. I hope today’s hearing focuses on how we can 

do that. 

Today we will hear from four witnesses who used personal email 

accounts to conduct official business. To be clear, no Federal law 

prohibits the use of personal email for official business so long as 

those emails are properly preserved. Very important. In this case, 

it appears that the majority of the emails at issue were in fact 

properly preserved because employees copied them to their official 

accounts to ensure that agency servers archived them. In cases in 

which this did not happen, it appears that employees have gone 

back to recover emails in order to ensure that they are fully available for review. 

Clearly, we can always do better in terms of ensuring that Federal employees know the rules and comply with them. To this end, 

I introduced H.R. 1234, the Electronic Message Preservation Act, 

in order to modernize the Federal Records Act and the Presidential 

Records Act for the electronic age. 

Mr. Chairman, an amendment you added during our committee 

markup is directly on point for this hearing, and I applaud you for 

that. It would ensure that email records created using non-official 

accounts are preserved and accessible through agency record-keeping systems by requiring employees to forward email records to 

their official accounts within five days. 

But my bill has languished since it passed out of this committee 

back in March. Mr. Chairman, I hope that you will join me in urging the House leadership to bring my bill to the House floor as soon 

as possible. 

Finally, I want to thank the witnesses for being here today. Each 

of you has served or is serving this Country in a critical Government position. Several of you rearranged your schedules to be here, 

some even under the threat of subpoena. Of course, the committee 

deserves answers to our questions, but you also deserve to be treated with respect and dignity. I want you to know that we appreciate 

your service and your cooperation. 

With that, I yield back. 

Chairman ISSA. I thank the gentleman. 

6 

All members will have seven days in which to submit opening 

statements and other extraneous material for the record. 

Before I introduce my witnesses, I ask unanimous consent that 

the Senate Minority Report, EPA’s FOIA and Federal Records Failures Uncovered, dated September 9, 2013, be entered into the 

record and copies be made and distributed so that all members and 

witnesses would have the report. 

Without objection, so ordered. 

We now welcome our distinguished panel of witnesses. 

Mr. Gary Gensler is chairman of the important, although numerically sometimes considered small, U.S. Commodity Futures 

Trading Commission. 

Ms. Lisa Jackson is the former Administrator of the EPA, or Environmental Protection Agency, and currently is the Vice President 

of Environmental Initiatives for Apple Corporation Inc. 

Mr. Jonathan Silver is the former Executive Director of the Loan 

Program Office at the U.S. Department of Energy. Mr. Silver is 

now a Visiting Distinguished Senior Fellow for Third Way. Welcome. 

Mr. Andrew McLaughlin is the former Deputy Chief Technology 

Officer, Executive Office of the President. Mr. McLaughlin is currently the Senior Vice President of Betaworks and Chief Executive 

Officer of Diggs and Instapaper. Very impressive; there is life after 

Government. 

And the Honorable David Ferriero is the Archivist of the United 

States and the man we count on to work hand-in-hand with all the 

agencies to modernize and capture this information. 

Pursuant to the committee rules, I would ask that all witnesses 

please rise and take the oath before testifying and raise your right 

hands. 

Do you solemnly swear or affirm that the testimony you are 

about to give will be the truth, the whole truth, and nothing but 

the truth? 

[Witnesses respond in the affirmative.] 

Chairman ISSA. Let the record reflect that all witnesses answered in the affirmative. 

Please be seated. 

You are a large panel today. You are all skilled professionals, so 

suffice to say your entire opening statement will be placed in the 

record, but we would like you to come as close to or less than the 

five minutes, to leave plenty of time for questioning. 

With that, we recognize Mr. Gensler. 

STATEMENT OF THE HONORABLE GARY GENSLER 

Mr. GENSLER. Good morning, Chairman Issa, Ranking Member 

Cummings, members of this committee. 

Promoting transparency in Government is critical so that the 

public can have a clear window and participate in Government decision-making. The Federal Records Act and the related FOIA are 

key to such transparency. 

I thank this committee for this hearing and the work on these 

matters bringing it into sharper focus. 

7 

I joined the Commodity Futures Trading Commission 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. We also took numerous steps since 

then to bring transparency to our work. We voluntarily post external meeting notes, who is there, what they have handed us, on our 

website. Over 2,200 meetings. We have increased tenfold our public 

meetings; and we have held nearly two dozen roundtables to facilitate public interaction. 

Literally, we rolled up our sleeves and worked day and night. 

Though I used my official email account far more than my personal, to get the job done, I did routinely engage with CFTC staff 

and others through my personal email, particularly outside of 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, frankly, I was not attuned to the ways of accessing work email at home. And at the CFTC we did not have a robust 

training program and I personally didn’t 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, and I want to thank the agency’s inspector general, who 

highlighted this and that it is better to avoid using personal email, 

even though no law prohibited it. The IG said that I used official 

email far more frequently than my personal, as he counted approximately 10 times more official emails than personal. He also said 

that there was no indication that the chairman was attempting to 

hide the use of the personal email from CFTC employees and attempts to conduct secret official business. In fact, many of the 

emails were with the general counsel and the chief information officer and the executive director. In a subsequent letter to Congress 

he said we do not believe it violated any Federal law. 

When this committee sought the emails from my personal account, I immediately tasked staff with gathering and delivering all 

responsive documents, and we did provide approximately 11,000 

emails that were sent to or originated or copied to personal email. 

Approximately 99 percent were exchanged with another Government official and were on Federal systems, and, in fact, 97 percent 

were at the CFTC already. The remaining documents that were not 

already there are there now, and I have tasked that staff look at 

them to make sure they are filed appropriately. 

But moving forward, let me say I believe we can and need to do 

better. First, I have directed staff to revise the CFTC’s email policies, working along with Archivist Ferriero and his staff, and I am 

glad he has agreed, in meetings with me, that he will help us revise our CFTC policies, ensuring a stricter and tighter guidance. 

Second, I have directed our executive director and general counsel to significantly enhance the agency’s training on Federal 

records and, related, how to access emails and do it in an efficient 

way. We have to promote telework and a flexible work schedule. 

And, third, while we have already made significant changes in 

technology, I have directed staff to ensure that we have flexible 

8 

and efficient tools not only for access but, importantly, record-keeping, and that is why I applaud the archivist’s efforts to bring Capstone into reality. This is a system where all the emails of senior 

officials will be captured. Ensuring full compliance with the Federal Records Act and other transparency laws is critical to the 

public’s faith in and understanding of our Government, and particularly of the CFTC. 

I thank you. 

[Prepared statement of Mr. Gensler follows:] 

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Chairman ISSA. Thank you. 

Ms. Jackson. 

STATEMENT OF THE HONORABLE LISA P. JACKSON 

Ms. JACKSON. Good morning, Chairman Issa, Ranking Member 

Cummings, and members of the committee. I appreciate having a 

chance to offer my statement to the committee this morning. 

Serving as administrator of the U.S. Environmental Protection 

Agency was a great privilege and the high point of my 25-year career in public service. I joined the EPA shortly after graduate 

school, after earning a master’s degree in chemical engineering. I 

spent 15 years on the staff at EPA, at headquarters here in Washington and later in the field office in New York before joining the 

New Jersey Department of Environmental Protection in 2002. I believe my public service ethic came from my father, a Navy vet, 

mailman, and then a machinist for the U.S. Postal Service. 

In January 2009, like EPA administrators before me, I was assigned two email addresses at EPA.gov. One address was to be 

published on the EPA website and the inbox was managed by EPA 

staff. The second address was shared with a more limited number 

of people and the inbox was managed primarily by me. 

As you know firsthand, public officials get a lot of email. The 

EPA has estimated that the administrator receives well over a million emails every year. That is a new email message almost every 

30 seconds, around the clock, 365 days a year. Managing an inbox 

that big is more than one person can handle and do their job effectively, to say the least. That is why many members of Congress, 

as well as the Executive Branch, set up a second account. It is 

about time management and efficiency. 

I would like to address the naming of my second account. I suggested that we label the second account Admin Jackson, or something similar with my name or title in it. But career staffers recommended using a full name, since the email address database was 

publicly available and searchable. People looking to have 

unimpeded access or a faster way to reach the administrator would 

be searching for a secondary address, so I was advised against anything obvious. My husband and sons were still living in East Windsor, New Jersey, and our family dog’s name is Ricky. So, with 

tongue in cheek, I named my account Windsor.Richard@EPA.gov. 

Regardless of the choice of name, the account was for official 

business and subject to the Freedom of Information Act. There was 

a learning curve for me on who should have access to the second 

account. I eventually decided that the account should be primarily 

for my senior staff and White House staff. EPA has released thousands of emails from this account. I used it every day to do my job 

more effectively. 

I would like to address personal email. When I was confirmed as 

administrator, like most people, I had a personal email account. We 

public officials are, after all, also private citizens. I maintained a 

personal email account for personal matters. Every public official 

has to use her best judgment in ensuring appropriate use of personal emails. My practice was to forward any email that I deemed 

pertaining to Government business into an official EPA.gov email 

account so that it could be captured for record-keeping purposes. 

12 

I respectfully call the committee’s attention to an example of this 

practice. On February 8th, 2009, I forwarded an email from my 

home email account to an official EPA email account. The business 

value of the email was questionable, but out of an abundance of 

caution I forwarded it to a staffer as an FYI with a note to ensure 

that it was not given undue weight in the policymaking process. 

This email chain can be found on EPA’s website and I would like 

to, here, submit it for the record, Mr. Chairman. It was released 

as part of a Freedom of Information Act request and I offer it as 

evidence that my action captured the email for transparency and 

record-keeping purposes. 

I have come to accept that there are those who will second guess 

the judgments that I made or question the motives behind those 

judgments. On one hand, there can certainly be honest and reasoned debate over my judgments, and, on the other, there are some 

who want to theorize that there is a hidden agenda. The principle 

reason I come here today is to make it perfectly clear that it was 

my practice to ensure that any official business conducted by me 

or through my email accounts was appropriately captured for 

record-keeping purposes. 

Mr. Cummings, to answer your question, I certainly did not intend to circumvent records or transparency laws. To the contrary, 

I intended for my records to be captured for purposes of recordkeeping. 

I recognize that the issue of preserving official Government correspondence is of critical importance, and in the digital age these 

issues are difficult ones. I commend you, Mr. Chairman, and the 

committee for tackling them. In a world that has been transformed 

by our ever-increasing ability to connect, it is my hope that you can 

find a path forward that encourages transparency without unduly 

restricting job efficiency, personal convenience, and privacy. 

Thank you. I am happy to answer any questions. 

[Prepared statement of Ms. Jackson follows:] 

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Chairman ISSA. Thank you. 

Mr. Silver. 

STATEMENT OF JONATHAN SILVER 

Mr. SILVER. Good morning, Mr. Chairman and Congressman 

Cummings. Thank you for having me today. My name is Jonathan 

Silver and I have been asked to appear today as the committee examines issues around email record-keeping in the Federal Government. I previously served as the Executive Director of the Loan 

Programs Office at the Department of Energy, a position I left almost two years ago. I should note, therefore, that I am here today 

in my capacity as a private citizen and am not in a position to 

speak to or about the current retention policies and practices at the 

Department. 

I testified before this committee’s Subcommittee on Regulatory 

Affairs, Stimulus Oversight, and Government Spending in 2012, 

where these issues were discussed in depth. In 2011 I testified in 

front of a different House committee that also addressed some of 

these issues. I have also been interviewed on several occasions by 

various committee staff. 

I last came before this committee more than a year ago, during 

the committee’s review of one of the 1705 program loans. During 

the course of that review, I voluntarily provided all the relevant 

documents I had from my personal email account, covering not only 

the time I was at the Department of Energy, but also, at the committee’s request, emails for an entire year before I was even in the 

Federal Government. 

Today I will, of course, answer the Committee’s questions again 

to the best of my ability. My appearance today, along with my swift 

compliance with your document requests a year and a half ago, 

demonstrates, I think, my willingness to assist the committee in its 

work. I would note, Mr. Chairman, that I also offered to make myself available to committee staff in an informal setting prior to this 

hearing. 

As you know, Mr. Chairman, the 1705 loan program had a statutory sunset date of September 30th, 2011, and substantial funds 

needed to be deployed by that date. It is important to remember 

that my office was working diligently to deploy that capital within 

a time frame established by Congress. We worked day and night 

to get the job done. Working under such a tight deadline required 

ongoing communications during and after business hours, and at 

night and on weekends. This was challenging because, as anyone 

who has worked at the Department can tell you, the Government’s 

IT systems are old and cumbersome. 

The overwhelming majority of the emails produced from my personal account are copies of emails from my DOE account containing 

documents, duplicate copies, white papers, analyses, spreadsheets, 

and others that already existed on the DOE servers. I occasionally 

forwarded or had forwarded to me documents from work in order 

to be able to work while traveling, out of the office, or at night and 

on weekends. I also sent and received some emails asking about logistics, or for updates, or to share an observation. I used my personal email in an effort to be as efficient and productive as possible, not in an attempt to be evasive. 

17 

In 2009, when I joined the Department, I do not recall being provided training in what was or was not a Federal Records Act issue. 

And to respond directly to you, Congressman Cummings, at no 

time did I intend to try to circumvent the Federal Records Act. 

While I strongly support transparency in the Federal Government, when I left the Government two years ago, I did not have 

a clear understanding of the Department’s requirements concerning 

personal email retention. As soon as I was apprised of these obligations, I immediately turned over all the relevant documents I had, 

both to the Department of Energy and directly to this committee. 

It is my understanding that that production has satisfied any obligation I may have had under the Federal Records Act. 

Thank you for the opportunity to appear today, and I look forward to answering any questions you may have. 

[Prepared statement of Mr. Silver follows:] 

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Chairman ISSA. Do you want to answer Mr. Cummings’ question 

as Ms. Jackson did? 

Mr. SILVER. I thought I did, sir. But, if I didn’t, let me say again 

that I directly respond to Congressman Cummings’ question by 

saying that I had, at no time, any intent to circumvent the Federal 

Records Act. 

Chairman ISSA. Thank you. 

Mr. McLaughlin. 

STATEMENT OF ANDREW MCLAUGHLIN 

Mr. MCLAUGHLIN. Good morning, Mr. Chairman, Mr. Ranking 

Member, members of the committee. I actually think this is an incredibly interesting set of issues, so what I would like to do is 

make an observation and then three suggestions for the committee’s consideration as you move legislation forward to the full 

House. 

My observation is simply this: The world that we are moving into 

is one where any new Executive Branch employee is not only going 

to have a single private personal email account, but may well have 

dozens of communications accounts on different services. I have 

listed probably two dozen common services that I would expect any 

20-something to have in my written testimony. So the world that 

we are moving into is one where friends, contacts, former co-workers, members of the public can find you on those services and can 

send communications in. 

So I have one personal example that I think is also relevant. I 

think I am sort of sitting here at the table as an example of an ordinary, somewhat reasonably conscientious employee who got a 

whole bunch of communications into my personal accounts, forwarded the bulk of them over to my official accounts, but missed 

some; and, when I got a FOIA request, went back, found them, forwarded them in, and that was my experience. 

But the world that we are living in now is one where the Federal 

agencies will not even have official accounts on these communication services. There is literally no way to send them in. So I have 

three suggestions for the committee’s consideration. 

The first one is the committee might want to specify that if a 

communication can’t easily be forwarded into an official account, 

there should be some kind of safe harbor practice that would count 

as a transmission into the Federal Government. For example, capturing a screen shot of an image. 

Now, I have to say some communications tools that are very common among 20-sometimes these days, like Snapchat, are built in 

such a way as to make it almost impossible to grab a screen shot 

and forward that communication in. But you could imagine a safe 

harbor approach where you could take a screen shot, pass that 

along to your email account, and have that be a safe harbor for 

compliance with the Federal Records Act and the Presidential 

Records Act. 

And I should say H.R. 1233 does a very nice job of clearing up 

two problems: one is knowing where you have to send a communication in order for it to count as having been transmitted, in 

other words, into your official account; and the second part is that 

it says that it must be done within five days. As you know, there 

21 

is currently no time limit on when a record has to be transmitted 

over in order to be compliant with the law. I think those are two 

positive changes. 

So idea number two is it is very difficult right now for a member 

of the public to find a way to officially communicate with an employee. For all the usual obvious reasons of spam, of privacy, of security, we don’t publish every Federal employee’s official email address. It can often be very difficult to find. 

One thing that is very common now in customer service operations or, if you look at, for example, a lot of newspaper websites 

that want their journalists to be accessible, but don’t want them to 

be targets for constant spam, is that they use things like a web 

forum, where you can submit a request to be in contact with that 

individual and it gets routed to that individual and they can then 

respond. But it is a reasonably workable hack that allows people 

to reach you so that they don’t feel like they have to go and communicate with you on some known personal account because that 

is the only one that they have access to. 

Suggestion number three is the committee could urge agencies, 

or even require agencies, to come up with language that must be 

attached, where possible, to the personal accounts of employees. So, 

for example, on a Tumbler account, you have a profile. And you 

could imagine a sentence being required to be inserted that says, 

if you want to talk to me about official business, don’t talk to me 

here. Don’t send me a message here, send it to my email address. 

This would be easier to do on some of the bigger services like 

Facebook, LinkedIn, Tumbler, Twitter, that have public-facing profiles. Other services would make it much more difficult. But you 

could imagine that the agencies would have to at least specify some 

basic language for some of the most popular communications platforms and try to route official communications elsewhere. 

Let me just say one final note, which is just by way of example. 

One of the things that happens over and over again is that people 

just communicate with you on your personal accounts. Sometimes 

you may not even read it. If you go on vacation, you don’t go back 

through your personal emails. One of the things that happened to 

me was a long experience involving Haiti, where the only way to 

communicate with individuals on the ground that were running 

ISPs that I happen to know that needed fuel was to use Skype, and 

Skype was a tool that the White House had not approved but was 

the only way to reach these people in Port-au-Prince that were 

keeping the servers running. 

So we used it, we captured screen shots, we transferred it all 

over. But it is a great example of where the most effective tool to 

get government business done may not even be an official tool, and 

the emergency, urgency exception applies, but there is no standard 

ordinary practice for how to forward those communications into 

records, and that is something that I think any responsible agency 

ought to address. 

I will be happy to answer the committee’s questions. Thank you 

very much. 

[Prepared statement of Mr. McLaughlin follows:] 

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Chairman ISSA. Mr. Ferriero, they have certainly teed up the fact 

that nobody knows how to deal with the new ones, that your job 

is impossible. Take as long as you want to respond. 

[Laughter.] 

STATEMENT OF THE HONORABLE DAVID S. FERRIERO 

Mr. FERRIERO. Chairman Issa, Ranking Member Cummings, 

Member Gowdy, thanks for holding this hearing on the importance 

of Federal record-keeping and the challenges we all face in managing the vast and growing number of email records. 

As background and context on our latest work in this area, on 

November 28th, 2011, the President issued a Memorandum on 

Managing Government Records, which launched a multi-year Executive Branch-wide effort to reform and modernize records management policies and practices. 

In the memorandum, the President stated: ‘‘When records are 

well managed, agencies can use them to assess the impact of programs, to reduce redundant efforts, to save money, and to share 

knowledge within and across their organizations. In these ways, 

proper records management is the backbone of open Government.’’ 

At the President’s direction, I joined with the acting director of 

OMB to issue an implementation directive to all heads of executive 

departments and agencies and independent agencies, largely based 

in part on the work done by this committee in H.R. 1233 and 1234. 

The directive describes two high-level goals and a series of actions that NARA, OMB, and the departments and agencies of the 

Federal Government must take to modernize records management 

policies and practices. 

The two high-level goals are: first, require electronic record-keeping to ensure transparency, efficiency, and accountability; and, secondly, demonstrate compliance with the Federal records management statutes and regulations. 

I am pleased to say that we are making progress toward achieving these goals. For example, in response to the directive, each 

agency designated a senior official to oversee and ensure compliance with records management statutes and regulations; not the 

records manager, a senior agency official with that responsibility. 

Last month, NARA issued guidance to assist agencies in meeting 

the directive’s call to manage email records in an electronic format 

by the end of 2016. 

Among the additional activities underway as a result of the directive, the Office of Personnel Management is working with NARA 

to establish a formal records management occupational series. 

There is no such thing as a records manager in the Federal occupational series. And by the end of 2014 agency records officers must 

obtain the NARA Certificate of Federal Records Management 

Training and all Federal agencies must establish a method to inform all employees of their records manager responsibilities and 

develop records management training for appropriate staff. 

I believe that the Presidential Memorandum and the implementing directive have set us on the path to addressing the challenges in modernizing and reforming records management. 

The effective management of email records is a significant part 

of records management reform. In that regard, the committee’s conVerDate Aug 31 2005 10:45 Dec 18, 2013 Jkt 000000 PO 00000 Frm 00030 Fmt 6633 Sfmt 6633 C:\DOCS\85906.TXT APRIL
27 

cern over the use of private or unofficial email accounts used to 

conduct Federal business is also a topic of interest to the National 

Archives. The National Archives discourages the use of private 

email accounts to conduct Federal business, but understands that 

there are situations where such use does occur. 

Accordingly, where a private email account must be used to conduct Government business because, for example, the Governmentprovided email service is not available for technical reasons, the 

Federal records generated through these private accounts must be 

moved to the official record-keeping system of the agency as soon 

as practicable and then managed according to the Federal Records 

Act, the Freedom of Information Act, and other legal requirements 

and their implementing regulations. 

As I just noted, NARA recently released an agency-wide bulletin 

introducing a new approach to managing the billions of email messages that are sent or received in Federal agencies. We have also 

issued a bulletin reminding agency heads about the need to appropriately manage and protect Federal records. Both of these bulletins and the President’s directive are attached to my written 

statement. 

There are a number of challenges and opportunities related to 

the use of electronic records in the Federal Government. The technological landscape is constantly changing and the volume of 

records is always growing. The focus of today’s hearing is email 

and the agencies covered by the Federal Records Act, but the challenges involved with records generated from social media platforms, as you have just heard, and the other two branches of the 

Federal Government are every bit as difficult. 

The talented staff of the National Archives and Records Administration looks forward to working through these issues. The longterm success of the National Archives and the historical record of 

our Nation depends on our collective success. 

Thank you for the opportunity to appear today, and I look forward to answering your questions. 

[Prepared statement of Mr. Ferriero follows:] 

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Chairman ISSA. Thank you. 

Before I begin my questioning, I apologize, but this is sort of 

committee business that I didn’t expect to have. 

Mr. Silver, you are represented by Dickstein, Shapiro & Morin? 

Mr. SILVER. Yes, sir. 

Chairman ISSA. In your opening statement you said you wanted 

to be transparent. I have in my possession a disturbing email that 

comes from an individual apparently working at Dickstein, Shapiro 

that actually asks a member of this committee not to ask questions 

of you. Are you familiar with this? You can consult with your counsel. 

Mr. SILVER. I am sorry, Congressman, I am not at all familiar 

with that, and I am told that we will look into it. 

Chairman ISSA. Well, I want more than look into it. I want an 

explanation from your counsel on why we shouldn’t refer this to the 

American Bar Association. I am informed that this is an employee 

who is in the lobby side of Dickstein Shapiro, who made multiple 

contacts to committee members, and at least one of them to staff 

representing a member specifically asked them not to ask you 

questions. We are providing your counsel with it, but from a committee standpoint, and you are not the attorney. 

I am speaking quite frankly, that is why it is not my question 

to you. The question of whether we refer this to the Bar Association, whether in fact it is an interference with Congress, which I 

find it to be, and the like will need to be resolved with the ranking 

member and myself after this hearing. 

But we have had a long history. Dickstein, Shapiro & Morin has 

represented a lot of individuals here. This one crosses the line, and 

I wanted to make sure it was on the record, not on behalf of Mr. 

Silver, but the fact that, when represented by counsel, we expect 

you to know more than the witness and keep the witness out of 

this embarrassing situation. 

Mr. Cummings? 

Mr. CUMMINGS. Thank you very much, Mr. Chairman. I want to 

thank you for sharing this email with me. As a lawyer and as an 

officer of the court, this concerns me greatly. Having represented 

lawyers in Maryland in disciplinary matters, you are absolutely 

right to be questioning this. I hope that this is not what it appears 

to be, because I think it would be very unfortunate. And you are 

absolutely right, it would be clearly out of bounds. I hope it is not 

what it appears to be. 

Thank you very much. And I will join you in your efforts to look 

into it. 

Chairman ISSA. Thank you. 

Now we will go to a line of questioning. 

Mr. Silver, this question had nothing to do with your conduct; I 

simply had to get it into the record. 

I am going to start with Mr. Gensler. The CFTC.com, who owns 

it? 

Mr. GENSLER. Mr. Chairman, I am not familiar with any website 

CFTC.com. 

Chairman ISSA. It is not a website; it is an email address, in addition to the U.S. and dot.gov, it is a commercial site, and I guess 

we are trying to find out, because we have emails delivered in 

51 

preparation on this, whether or not that is a CFTC asset and, if 

so, if it is being captured. 

Mr. GENSLER. I am not familiar with any web address at 

CFTC.com. This was a question that was raised by your hardworking staff late yesterday, and I know our technology staff is 

taking a look at what this might be, but I am not familiar with any 

such site. It is not one I have ever used, sir. 

Chairman ISSA. You have used it. That is part of the discovery, 

is you may not have intended to use it, but we have emails now 

that say they are coming from you at a dot.com. 

Mr. GENSLER. What our senior technologist told me last night, 

and I think he will have to work with you to look at it, is that it 

may be that somebody put in a name, not an actual address, but 

a name, just as they might misspell my name, instead of Gary with 

one R, with two Rs. 

Chairman ISSA. Well, again, we will look into it. Again, it is part 

of that whole question. 

Mr. Gensler, just to put it in the record, you headed an important organization, some 600 people and a tremendous amount of 

dollars that passed through. Did you receive any training as to the 

Federal Records Act? 

Mr. GENSLER. I am the head of the agency and I take full responsibility, but, no, I did not receive training on the Federal Records 

Act as I came into the agency. I spent a lot of time on training 

these last three or four months. 

Chairman ISSA. Ms. Jackson, you have spent a lifetime since 

graduate school. Have you received training on the Federal Records 

Act? 

Ms. JACKSON. I did receive record retention training, as I recall, 

sir. EPA would have those records, though, they are not in my possession. 

Chairman ISSA. Mr. Silver, how about yourself? 

Mr. SILVER. To the best of my recollection, Congressman, I did 

not receive specific training on the Federal Records Act. 

Chairman ISSA. Mr. McLaughlin, if people don’t get trained, is 

there any way that all those ideas and suggestions mean anything? 

Mr. MCLAUGHLIN. No, sir. 

Chairman ISSA. Okay. Particularly agency heads. 

Mr. Silver, you made some very specific statements, and I want 

to call you on one of them because they don’t seem to square. I 

have an email between you and Morgan Wright dated August 21st, 

2011, and it says, ‘‘Don’t ever send an email on DOE email with 

private email address. That makes them subpoenable.’’ 

Tell me why I shouldn’t consider that a deliberate circumvention, 

since you were pervasive in setting up and creating, and even putting other people onto non-Government email and you conducted 

business, even while you were at the office, from these non-Government emails. Why is it I should not consider that a deliberate circumvention? 

Mr. SILVER. Congressman, I did certainly use my private email 

from time to time, but, as I said before and want to reiterate now, 

it was certainly never my intent to evade. The email that you refer 

to is a response to an email chain that precedes it that is on the 

DOE servers, and somebody noted that there was a personal email 

52 

address in the header to somebody, and mine was an admonishment and a reminder that you should not mix these two things. 

Chairman ISSA. Is it coincidental that when we looked for emails 

related to the need to backfill money for one of the largest bankruptcies related to the energy loans, that those emails related to 

that, the emails related to pumping in money at the end to try to 

stop or delay a fall were on private emails? And they were not forwarded. 

Mr. SILVER. I am sorry, the question is, do those exist? 

Chairman ISSA. Well, they did exist. 

Mr. SILVER. Yes. 

Chairman ISSA. Mr. Gensler, you went through the 99 percent 

and the forwarding and so on. 

Mr. Silver, you didn’t. You very clearly, from what my records 

show, and my memory, for that matter, you created a separate account, you used it to talk to people about problems in the loan program and about, ultimately, how to hide or delay the knowledge of 

an impending bankruptcy at Solyndra, right? 

Mr. SILVER. Well, Congressman, I was communicating with longstanding confidence people who I had worked with for many, many 

years, some who wrote to me because they had my personal email 

on it. I responded in kind. I did send some of those emails. It was 

not my intention to evade anything there, but we were in the heat 

of trying to struggle with this company and we wrote some personal emails, yes, we did. 

Chairman ISSA. Okay. Well, we will put some more of them in 

the record later, but I just have one last one. 

Ms. Jackson, who is Allison Taylor? 

Ms. JACKSON. Allison Taylor is a friend. She is someone I have 

known for quite some time. 

Chairman ISSA. But you work for the President, right? 

Ms. JACKSON. When I worked at the U.S. Environmental Protection Agency I worked for the President. 

Chairman ISSA. Okay, so you are working for the President. The 

President has a prohibition on basically your coordination with lobbyists. She is a lobbyist, isn’t she? 

Ms. JACKSON. I believe she is a registered lobbyist, yes, sir. 

Chairman ISSA. Okay. 

Ms. JACKSON. I don’t know if she is today. 

Chairman ISSA. Well, my understanding is Allison Taylor at Seamans.com. Do you know what she did for Seamans? 

Ms. JACKSON. I believe she ran the sustainability business or the 

government affairs. I am not sure. The way I knew her was actually in a personal manner as well. 

Chairman ISSA. So you only knew her in a personal manner? 

Ms. JACKSON. That is not fair to say. I can’t separate knowing 

someone in this city. They have jobs, people have jobs and lives. 

Chairman ISSA. Well, I apologize, but that was what the 

Abramoff scandal was about, is that people said we were friends, 

when in fact he was a lobbyist. 

From your Richard Windsor account, the official private account, 

the one the public didn’t have, in 2009 you did an email that has 

a P.S.: P.S. Can you use my home email account rather than the 

one when you need to contact me directly? Tx, Lisa. 

53 

To me, that sounds like you didn’t want the efficiency of not 

being bothered; just the opposite, you were giving a lobbyist your 

personal email account for other communication when she wanted 

to reach you directly. 

Ms. JACKSON. Sir, again, if you look at the entire email chain, 

you can see that there are a couple things going on. She makes 

note that she has requested an official meeting through official 

channels, through my chief of staff. And she goes on; it is a chatty 

email and she says there is no business to be done. 

So what I was doing was telling a personal friend, someone I 

knew personally, hey, if you want to contact me, don’t use my official account that I am using to get business done day in and day 

out. You have already made a request for a meeting. Contact me 

at home. Now, certainly, if anything in that email, when she contacted me at home, was business related, then my practice would 

be to send that in to the official account, as the example I demonstrated. 

Chairman ISSA. Okay. Well, we will put the entire chain in the 

record, and I am sure others will use it. 

I recognize the ranking member. 

Mr. CUMMINGS. Thank you very much, Mr. Chairman. 

Ms. Jackson, just a real quick question just kind of following up 

on what the chairman was asking about. You said Allison Taylor 

was a friend. Can you explain that relationship so we will have 

some clarification? 

Ms. JACKSON. Certainly. It was a preexisting relationship, it existed before I was confirmed as administrator of the agency. I knew 

her. She had worked for many years. I first met her on the Hill 

I believe working for Mr. Dingle in Energy and Commerce. She is 

someone in environmental circles that is thought of extraordinarily 

highly and we have many mutual friends as well. If you look at the 

email in question, it is Lisa and Allison, it is an email that had a 

business component. That’s why I felt as though there was a personal component. 

Mr. CUMMINGS. Was there any effort to evade the records and 

transparency laws here? 

Ms. JACKSON. No, sir. In fact, it is a public record that I am saying to her, feel free to use my personal account, but it was not to 

evade or circumvent records or transparency. 

Mr. CUMMINGS. Mr. Ferriero, is there anything in the Federal 

Records Act or any other law that you know of that prohibits the 

use of a secondary official account or the so-called alias email account? 

Mr. FERRIERO. No, there is not. 

Mr. CUMMINGS. In fact, the NARA issued guidance for agencies 

yesterday, is that right? 

Mr. FERRIERO. That is right. 

Mr. CUMMINGS. In part addressed alias email accounts when an 

official uses an email address with a pseudonym. NARA’s guidance 

says, ‘‘NARA recognizes that employees may have a business need 

for more than one agency administered email account.’’ One of the 

business needs NARA identifies is ‘‘using separate accounts for 

public internal correspondence.’’ Now, can you describe NARA’s position on how agencies should treat secondary accounts? 

54 

Mr. FERRIERO. Let me just clarify. Yesterday’s bulletin clarifies 

our stand on the need to ensure that multiple email accounts are 

accounted for. NARA guidance before that always said, regardless 

of medium that you are using, you need to capture Federal records. 

So this one clarifies the electronic mail situation. 

I think the situation that EPA described in terms of a million 

email messages coming in a day to an address is a good example 

of the need for multiple addresses. And as far as NARA is concerned, we don’t care how many addresses you have as long as 

those that are doing Federal business are captured in the Federal 

system so that they are available for future use. 

Mr. CUMMINGS. Now, coming back to you, Ms. Jackson, there 

seems to be quite a bit of concern about your use of an alias email 

account to conduct official business. You have said that you used 

the alias, Richard Windsor, in addition to a standard EPA email 

address bearing your first and last name, you explained that. In a 

letter to Science Committee Chairman Ralph Hall, EPA explained 

the need for this alias email as follows, and I want to quote and 

find out whether you agree with this. It says, ‘‘The secondary account is an everyday working email account of the administrator 

to communicate with staff and other Government officials. The secondary email account is used for practical purposes. Given the 

large volume of emails sent to the public account, more than 1.5 

million in fiscal year 2012, for instance, the secondary email account is necessary for effective management and communication 

between the administrator and colleagues.’’ 

Is this an accurate explanation of your reason for using a secondary email account? I thought you said a million. They are saying 1.5. 

Ms. JACKSON. I estimated low. Yes, I believe that EPA has used 

the 1.5. I took a conservative number. And, yes, it is generally the 

same as the explanation I gave, which is it is not unusual in the 

public account for thousands of emails to come in overnight commenting on a rule or a concern; write the EPA administrator and 

tell him or her this or that. So for practical purposes, for time management purposes, for the ability to do the job using email, that is 

why I had a secondary official email account. 

Mr. CUMMINGS. And who did you communicate with using Richard Windsor email address? 

Ms. JACKSON. In general, I used it to communicate with my senior staff at the Environmental Protection Agency, with White 

House staff, with some members of the Administration. But they 

were senior members of the Administration. I limited the use of it 

over time because I couldn’t have too many people using it or it 

would defeat the purpose of having a secondary official account. 

Mr. CUMMINGS. Now, do you know whether this was a new practice of the EPA, this practice that you just talked about? 

Ms. JACKSON. No, sir. My predecessors before me had secondary 

official email accounts. 

Mr. CUMMINGS. In fact, many of your predecessors in Democratic 

and Republican administrations alike employed email aliases to 

conduct official business. Among others, President George W. 

Bush’s first EPA administrator, Christine Todd-Whitman, used the 

55 

address ‘‘ToWit;’’ Markus Peacock, who was an acting administrator under President Bush used the address ‘‘Tofu.’’ 

Ms. Jackson, were the records in your primary and secondary 

email accounts preserved as required by the Federal Records Act? 

Ms. JACKSON. Both of those accounts are preserved and archived; 

they are in the possession of EPA, their custody, their control. They 

are official accounts and that is what they were set up as. 

Mr. CUMMINGS. Now, as far as you know, were the records in 

both your primary and secondary email accounts searched when 

necessary in response to the Freedom of Information Act request? 

Ms. JACKSON. As far as I know, that is exactly what happened, 

and I certainly know that there were times when I would be asked 

do you think there are records in your accounts responsive, and I 

would say go ahead and search them. They were searchable, yes, 

sir. 

Mr. CUMMINGS. Now, Mr. Gensler, I want to come back to you. 

The chairman rightfully had asked, I think it was, Mr. Silver 

whether he had answered my question. Did you answer that question? Maybe I missed it. The one about transparency, whether you 

intentionally—— 

Mr. GENSLER. Thank you for bringing me back to that. Just as 

the inspector general of our agency said, I think I quoted that I 

hadn’t violated any Federal records law. Also, to your question, I 

did not intend to circumvent the Federal Records Act. 

Mr. CUMMINGS. Okay. I understand that you have employed several different aliases during your tenure. Why did you decide to use 

email aliases? 

Mr. GENSLER. Though at the CFTC we don’t have quite the volume that is over at the EPA, as I came into the office there were 

many concerned citizens, sometimes hundreds in a day, that would 

email into GEGensler@CFTC.gov. Everyone at the CFTC has that 

same nomenclature. So the Office of Data Technology, along with 

the executive director and the lawyers, set up another account that 

just took my initials, actually, but set up another account which 

was linked. The FOIA office had it linked. We have gone back, just 

in preparation for this hearing, to see whether, over these last 

years, whether they were always linked. And it was the senior staff 

of the agency and of Government could communicate on this secondary account, which, as I say, were linked in the FOIA office and 

the data technology and is archived. 

Mr. CUMMINGS. My last question to you, Ms. Jackson and to you, 

Mr. Gensler. I am sure, having had to come before this committee, 

you have thought about this a lot, and I am just wondering are 

there things that you think the Congress ought to be doing or your 

agencies could be doing so as to make sure, I am sure you agree 

with what we are trying to get to here. Things that we might be 

able to do so that future folks in your positions are within bounds 

of what we are trying to accomplish. 

Mr. GENSLER. I do, and I want to thank both you and the chairman for allowing me the time to meet with you. I really do applaud 

this committee. I think that this separation between official business and personal business is important so that the public really 

has trust in their Government, that the press has exposure into it, 

56 

and yet we can keep our private lives private, and that there is 

that separation. 

And I must say, looking back at the CFTC, though the inspector 

general said we didn’t violate any laws, which is good, I think we 

could have done better, and there is 99 percent of these, in my 

case, that were here in Government accounts, but what about that 

1 percent? So we have brought it in now. We have gone back and 

we have looked at FOIA requests and we see that there is not anything a problem. 

Three things: I think we have to tighten our roles. NARA has 

done that yesterday. I want to do that at the CFTC. And if you do 

that through H.R. 1234, while I am not an expert there, I do support the general approach to really modernize our record-keeping 

laws to the 21st century. 

Two, I think training is critical, and I have directed our executive director and general counsel to update our training both on onboarding employees and also the current staff. 

And thirdly is technology. We are going to need to spend money 

on this Capstone approach, but I think Capstone is a really good 

thing because it means it captures everything. Even the inadvertent deletion can’t be deleted. 

Mr. CUMMINGS. Ms. Jackson? 

Ms. JACKSON. Thank you, Mr. Cummings. I would echo the idea 

of clarity as much as possible in a very complex situation. I thank 

the committee for trying to give more clarity, because I think every 

official with good intent is trying to follow the law as best they can, 

use their best judgment. And I would also urge that there be, if 

there are a set of rules and policies and they are followed, that second-guessing by looking at the official records and trying to guess 

whether or not somebody was complying is quite difficult, because 

those records are all public and available. So I would just ask for 

fairness in judgment as well, that there be a set of requirements 

and that people understand them, be trained on them, and then 

look to those requirements and not a moving target. 

Mr. CUMMINGS. Thank you, Mr. Chairman. 

Chairman ISSA. Thank you. And I just want to piggy-back what 

the ranking member said, or your line of questioning. I hope everyone seeing this today understands that members of Congress, if 

they just put Darryl.Issa@House.gov, it would be useless from a 

standpoint of doing business, and I think Mr. Cummings and I 

both have that situation. I know members who tried having a 

plain, ordinary name. So I want to recognize that a common, the 

same approaches at your agency often doesn’t work for the head of 

an agency, or even for some key people within an agency. 

Having said that, Ms. Jackson, one of the concerns of the committee is during the entire period before your alias was known, 

FOIA requests, if they were germane, did not give true name, and 

one of the challenges we are going to have for Mr. Ferriero and in 

our legislation is to make sure that if a name like IT.something or 

an absolute fake name, and in your case the name appeared to be 

clearly somebody else, a man, when there is a FOIA, it has to be 

understood, it has to be converted to a true name; and that may 

be the bigger challenge, is that I can be Darryl.Issa, Mr. Cummings 

can be Cummings.dot, or I could be Joe Bag of Donuts and you can 

57 

be Sam Good Neighbor, but if a document is produced, it has to be 

at a true name. And that will be something the committee will be 

working on going forward, is the fact that true names have to 

somehow come out, to the extent that they are not redacted. 

Now, to the extent that they are redacted, I guess it wouldn’t actually matter what the email address was. 

With that, we go to the gentleman from South Carolina, Mr. 

Gowdy. 

Mr. GOWDY. Thank you, Mr. Chairman. 

Mr. Silver, what do you think the purpose of the Federal Records 

Act is? We will get to the plain language in a minute. What is the 

purpose of it? 

Mr. SILVER. Well, I am not a lawyer. 

Mr. GOWDY. You don’t have to be a lawyer to know the purpose 

of the Federal Records Act. 

Mr. SILVER. I think the purpose of the Federal Records Act, Congressman, is to make sure that there is as complete and robust a 

record of agency activities as is possible. 

Mr. GOWDY. You would be right. Now, the last time you were 

with us, I asked you specifically whether or not you had deleted 

any emails that might fall under the jurisdiction of the Federal 

Records Act. Do you recall your response? 

Mr. SILVER. I think I said at the time that I had certainly deleted 

emails, but it was not in an attempt to evade, it was a regular 

cleaning out of my inbox. 

Mr. GOWDY. Was that testimony true at the time you gave it and 

is it currently true? 

Mr. SILVER. Yes. 

Mr. GOWDY. It was true at the time? 

Mr. SILVER. It was true at the time. 

Mr. GOWDY. Now, I am informed that a third of your personal 

emails were not produced to the committee prior to your testimony. 

Do you agree or disagree with that? 

Mr. SILVER. I agree with that. As you know, Congressman, I had 

come back in the Country two days before the hearing. We produced as much as we could before the hearing and we produced everything that we hadn’t yet produced until after the hearing. 

Mr. GOWDY. Well, that is an interesting statement you just 

made, because are you aware that some of the emails we got from 

your personal email account we didn’t get from you, we got from 

other sources? 

Mr. SILVER. I am sure that is true, because I had deleted some. 

Mr. GOWDY. Well, then you would not have given us everything, 

and your prior testimony about not deleting anything would have 

also been incorrect. 

Mr. SILVER. No, that is not right, Congressman. I gave you everything that I had. 

Mr. GOWDY. Mr. Silver, I want to read an email to you and I 

want you to help me kind of walk through it, okay? ‘‘Don’t ever 

send an email on Department of Energy email with private email 

addresses. That makes them subpoenable.’’ Now, we are going to 

overlook the word that subpoenable is not a word. Why were you 

concerned about subpoenas? 

Mr. SILVER. As I said before your arrival, Congressman—— 

58 

Mr. GOWDY. No, I was here for it. 

Mr. SILVER. That email was an intent to remind and admonish 

the staff who had received an earlier email that was on the DOE 

server that somebody had included somebody’s personal email address on that they should try to keep those two things separate. 

Mr. GOWDY. Why? That is my question. What were you concerned about be subpoenaed? 

Mr. SILVER. I wasn’t concerned that any specific thing was going 

to be subpoenaed. 

Mr. GOWDY. Well, then why did you use that phraseology, Mr. 

Silver? That is not a throwaway line. That is not hope you are 

doing well, call me sometime. 

Mr. SILVER. No, it is inartful, no question about it. 

Mr. GOWDY. No, no, no, I didn’t say it was inartful. I think it was 

exactly what you intended to communicate. My question to you is 

what were you concerned would be subpoenaed. 

Mr. SILVER. I was not concerned that any specific thing would be 

subpoenaed. 

Mr. GOWDY. Well, then why did you say it, Mr. Silver? That 

makes them subpoenable. 

Mr. SILVER. I was trying to remind the staff that all their personal emails and whatever that includes, whatever they do, whoever they are doing it—— 

Mr. GOWDY. Well, don’t you think that flies directly in the face 

of the Federal Records Act, that you would be concerned that something would be discovered? I mean, subpoenable is another word 

for discoverable, right? They mean the same thing, essentially. 

Mr. SILVER. Yes. 

Mr. GOWDY. So your DOE emails are already discoverable. You 

were concerned that personal emails would be discovered, right? 

Mr. SILVER. I was reminding the staff that their personal emails 

should remain personal to themselves. 

Mr. GOWDY. Well, that is not what you said, Mr. Silver. I mean, 

that may have been what you meant, but that is certainly not what 

you said. What you said was that makes them subpoenable, or discoverable, or can be found out. 

Mr. SILVER. As I said, Congressman, what I meant was that they 

should keep their personal and professional emails separate. 

Mr. GOWDY. I asked you specifically whether or not you were 

concerned that concealment might be a motive for using personal 

emails, because you told us it was all about convenience, that you 

only forwarded emails that had large attachments or documents, 

and that it made it difficult for you to read on your BlackBerry. 

Do you recall that testimony? 

Mr. SILVER. I do. I said that was largely the case. But, yes, I do 

recall that. 

Mr. GOWDY. All right. Did you forward any emails from your 

DOE account to your personal account that did not have documents 

attached to them? 

Mr. SILVER. I am sure I did. 

Mr. GOWDY. Well, the very email that you and I have been discussing came from your personal email account, right? 

Mr. SILVER. That email does originate from my personal account, 

yes. 

59 

Mr. GOWDY. Right. And that didn’t have a lot of documents attached to it and it wasn’t necessarily hard to read, was it? It was 

just two sentences. 

Mr. SILVER. Right. That is correct. 

Mr. GOWDY. Ms. Jackson, ‘‘Can you use my home email rather 

than this one when you need to contact me directly?‘‘ Why did you 

say that? 

Ms. JACKSON. Because Allison Taylor, the author in the email 

chain, was a friend and I believed that a personal friend should use 

personal email. 

Mr. GOWDY. Is there an exception for personal friends in the Federal Records Act? 

Ms. JACKSON. Sir, as I have already stated, my intention was to 

comply with the Federal Records Act. 

Mr. GOWDY. That wasn’t my question, actually. Is there an exemption or an exception that you are aware of for personal friends? 

It is not a complicated question. Are you aware of an exception to 

the Federal Records Act for personal friends, yes or no? 

Ms. JACKSON. The Federal Records Act, the intent is to make 

sure that official Government business is captured in official Government accounts. 

Mr. GOWDY. Well, what she was emailing you, would you consider that to have been official Government business? 

Ms. JACKSON. As I said earlier, sir, she had requested, through 

official channels, a meeting for her employer. 

Mr. GOWDY. And do you think that was a personal meeting or 

a meeting in your professional capacity as the administrator? 

Ms. JACKSON. The meeting was being handled through professional channels, sir. 

Mr. GOWDY. All right, so it was a professional email that she 

sent to you, and your response was contact me on my personal 

email. 

Ms. JACKSON. No, no. The response included saying that we 

would work to set up the meeting, and what I say is if you need 

to contact me directly—this is a friend talking to another friend— 

please call me on my personal email. 

Mr. GOWDY. Is it possible that a friend could contact you about 

official business? Is that possible? 

Ms. JACKSON. It is certainly possible. 

Mr. GOWDY. Well, it clearly has to be possible because that is 

what has happened here. 

Ms. JACKSON. Well, I would be happy to answer the question, sir. 

I would say yes, it is certainly possible. 

Mr. GOWDY. Okay. So why would there be an exception for 

friends to use your personal email even if it might be official Government work? 

Ms. JACKSON. Sir, friends use personal email. If there is official 

Government work involved, then, under EPA policy, I would then 

have to forward it in to an official account so that it could be captured for record-keeping and archiving purposes. 

Mr. GOWDY. Well, Ms. Jackson, I am sure you can see how a 

skeptical reader of that email might reach another conclusion, 

wouldn’t you? 

60 

Ms. JACKSON. I think that if someone has the intent to see something more there, that is fine, but the email talks about a meeting 

being scheduled through official channels. 

Mr. GOWDY. Right. And she used the Richard Windsor email and 

she didn’t have any trouble getting to you through that email, and 

your response was can you use my home email rather than this one 

when you need to contact me directly. 

Ms. JACKSON. Again, if you look at the entirety of the email 

chain—— 

Mr. GOWDY. I don’t have the entirety of it. I would be happy to 

look at it. 

Ms. JACKSON. Well, it is available on the EPA website and it has 

been released under FOIA. 

Mr. GOWDY. I would be happy to. 

Ms. JACKSON. I also gave it for the record. 

Mr. GOWDY. Thank you, Mr. Chairman. 

Chairman ISSA. Would the gentleman yield for a second? 

Mr. GOWDY. Certainly. 

Chairman ISSA. I just want to make sure the record is clear. For 

Allison Taylor to contact you at your Windsor account, you had to 

give her your Windsor account, it wasn’t public. 

Ms. JACKSON. I actually do not know how she got the account address, sir. I do not know. I don’t have those records. I don’t have 

the Windsor email accounts available. 

Chairman ISSA. And I think Mr. Gowdy hit everything except one 

sub-question. You said in your testimony that you would determine 

when something would be forwarded. Isn’t it true, under the Federal Records Act, you don’t get to decide what is relevant, it is your 

entire database is often looked at for discovery? So in the case of 

your private email, you are deciding what you think, and Mr. Silver and Mr. Gensler are deciding what is relevant, rather than a 

neutral third-party deciding whether something should be discoverable; and I think that may be a part of what Mr. Gowdy was alluding to, is that by a lobbyist contacting you outside of Government 

chain, it becomes much more, well, I will turn over what I think 

is relevant and delete the rest. 

With that, we go to Mr. Davis. 

Ms. JACKSON. Mr. Chairman, may I respond to that? 

Chairman ISSA. There wasn’t a question there. That was an observation that somebody had your personal Government account 

and you gave a lobbyist your personal account. 

Ms. JACKSON. No, sir, I did not say that. 

Chairman ISSA. And that person was asking for an official meeting in that train. You keep saying go to your website. Your website 

shows that you had a lobbyist trying to do official business with 

EPA; you had somebody that was in the process of trying to work 

with your agency, and you are giving them a private email and not 

telling them if you want to talk to me about the dinner dance, go 

to my personal email. 

No, you were telling them here is my personal email and use it. 

You were not, in that train, so specific on how to divide your personal life with this friend who you don’t even know how she got 

your non-public Government account. 

You may answer. 

61 

Ms. JACKSON. Thank you, Mr. Chairman. Respectfully, the email 

train, if you look at the entirety, includes a request for a meeting 

that has gone through official channels. It is addressed to me as 

Lisa; I address her as Allison. She says there is no business to be 

done, we think you’re a rock star. I mean, it is conversational in 

nature. So my only intent was to simply say, hey, friend, if you 

want to contact me directly, here is my personal email account. The 

business that was done was handled through official channels, sir. 

Chairman ISSA. Ms. Jackson, I appreciate all that, but let’s understand that the IG and your former agency have made it clear 

that we have lost forever, and will not have, your entire train of 

official activities. They have discovered that much of what we are 

asking for simply no longer exists, and that has been told to this 

committee. So in the case of your activities using personal accounts, we will not get full discovery, the public will not get it. 

The fact is EPA has not met its responsibility for transparency 

and, quite frankly, ma’am, that means that you have put us at risk 

of lawsuits for decisions made in which people suspect that emails 

that have been lost would help their case rather than yours. That 

is a real problem and that is the result of when people don’t do 

their job right, and clearly you didn’t do your job right when it 

came to making those available, and that is also in the record and 

people may look at it. 

Mr. Davis, I apologize for the lateness of that. The gentleman is 

recognized. 

Mr. DAVIS. Thank you very much, Mr. Chairman. 

Mr. Ferriero, let me try and make sure that we have the facts 

straight on the laws that we are talking about today. I have heard 

accusations from the other side of the aisle saying that some of the 

witnesses at the table today ‘‘broke the law’’ because they used 

their personal email account for official business. Could you please 

answer this question yes or no: Is it against the law for a Federal 

employee to use a non-Government email account for official Government business? 

Chairman ISSA. Would the gentleman yield to make sure that the 

accusation is correct? Mr. Davis, would you yield? 

Mr. DAVIS. Yes. 

Chairman ISSA. I just wanted to add to that, because I think his 

answer is important. Our allegation is not that people use private 

email, but that in many, many cases those private emails of doing 

official business were not forwarded in any time frame, at least 

until we were in discovery with subpoenas, to the Government. 

That is our accusation of breaking the law. I just want to make 

that clear. I thank the gentleman. 

Mr. DAVIS. Thank you very much, and I resume. 

Mr. FERRIERO. With the chairman’s clarification, the guidance 

that we have provided is that it is the recognition that personal 

email accounts can be used, but that, if they are used for official 

business, then that communication needs to be forwarded to their 

Government accounts. 

Mr. DAVIS. So that it can be revealed. 

Mr. FERRIERO. Exactly. 

Mr. DAVIS. Or accessed. 

62 

Mr. FERRIERO. So that it can be captured just as all Government 

records are captured. 

Mr. DAVIS. Thank you very much. Let me ask you this. The Federal Records Act requires that agencies preserve Federal records, 

regardless of how they are created. Is that correct? 

Mr. FERRIERO. That is correct. 

Mr. DAVIS. Not every email an agency employee writes would 

even be a Federal record, is that correct? 

Mr. FERRIERO. Say that again? 

Mr. DAVIS. Not every email an agency employee writes would 

even be a Federal record. 

Mr. FERRIERO. That is possible. 

Mr. DAVIS. Can you explain what would be considered a record? 

Mr. FERRIERO. Anything related to the business of the agency. 

Mr. DAVIS. So if there is something of a personal nature that 

does not relate to the business of the agency, must that be accessible? 

Mr. FERRIERO. No. 

Mr. DAVIS. If an employee creates an email record using a nonpublic account, what should the employee then do? 

Mr. FERRIERO. If they are transacting Government business on 

that personal account, then that message needs to be forwarded to 

their Government account so that it is captured as record. 

Mr. DAVIS. So the Federal Records Act does not include any specific penalties for violations of the law. 

Mr. FERRIERO. That is right. 

Mr. DAVIS. I think, then, that we all agree that Federal employees should avoid non-official email accounts for official business. 

But as NARA acknowledges in the guidance it issued yesterday, 

there are times when using a personal email account is necessary. 

NARA’s guidance says: ‘‘While agency employees should not generally use personal email accounts to conduct official agency business, there may be times when agencies authorize the use of personal email accounts, such as in emergency situations when Federal accounts are not accessible or when an employee is initially 

contacted through a personal account. In these situations agency 

employees must ensure that all Federal records sent or received on 

personal email systems are captured and managed in accordance 

with agency record-keeping practices.’’ 

So, Mr. Ferriero, you agree that there are times when an employee may need to use a personal email account in order to perform their duties, is that correct? 

Mr. FERRIERO. That is correct. 

Mr. DAVIS. Thank you very much. 

I yield back, Mr. Chairman. 

Chairman ISSA. I thank the gentleman. 

We now go to the gentleman from Florida, Mr. Mica. 

Mr. MICA. Thank you, Mr. Chairman. I came in a little late, but 

let me just talk to Mr. Silver, if I may. A couple questions for Mr. 

Silver. 

You were the executive director of the loan program of the Department of Energy from, when was it, 2009? 

Mr. SILVER. November of 2009 until the end of September of 

2011. 

63 

Mr. MICA. And you were, I guess, in that position when the Administration issued some energy loans that resulted in significant 

taxpayer losses, including Solyndra, Beacon Power, Abound Solar, 

and Fisker Automotive, is that correct? 

Mr. SILVER. Yes and no, Congressman. I was the head of the 

agency. 

Mr. MICA. During the time. 

Mr. SILVER. Yes. Not all of those ran into trouble during that period, but yes. 

Mr. MICA. And then I see here that when you came and testified 

before us, Mr. Cummings, our ranking member, at the July 18th 

hearing, 2012, you stated, as I say, almost nobody, and certainly 

nobody I am aware of in the loan program, even knew who the individuals were who had invested either, directly or indirectly, in 

these companies. That was your statement? 

Mr. SILVER. Yes, I did make that statement. There seems to be 

some confusion about that. We obviously know who the investor 

groups are, because we negotiate with them; that is the nature of 

the business. I took the question to mean did we know anything 

about their donation history and did we know the underlying investors. So, for example, in a venture capital firm, we have no idea 

who the limited partners of that firm are. 

Mr. MICA. So you did know people like Aaron Price, Ira Aaron 

Price? 

Mr. SILVER. Yes, Ira Aaron Price. 

Mr. MICA. You did know him before? 

Mr. SILVER. Certainly. He is one of the partners of one of the 

firms that was an investor. 

Mr. MICA. Did you know, at the time, he was major investor in 

Abound Solar and Tesla? 

Mr. SILVER. Did I know at the time? At what time, sir? Yes, I 

knew he was an investor. 

Mr. MICA. At the time they received Government loans. 

Mr. SILVER. Of course. I hadn’t, but members of my staff had negotiated with he and his firm and the other investors on the terms 

of the transaction. 

Mr. MICA. Did you communicate with him by telephone or by 

email? 

Mr. SILVER. Undoubtedly both, sir. 

Mr. MICA. Okay. And private email? 

Mr. SILVER. I don’t recall, but I wouldn’t be surprised. 

Mr. MICA. Okay. And how about a John Doerr, an investor in 

Fisker? 

Mr. SILVER. He is a partner at Kleiner Perkins. 

Mr. MICA. Yes. Did you communicate with him on personal email 

or by phone calls? 

Mr. SILVER. Probably both, sir. 

Mr. MICA. It seems a little bit in conflict to what you told Mr. 

Cummings. Did you know also that Mr. Doerr was, again, an investor in Fisker at the time? 

Mr. SILVER. I did, although—yes, I did. 

Mr. MICA. So do you still stand by your statement that you had 

given to Mr. Cummings? 

64 

Mr. SILVER. Yes, sir, I do. It is a very fair question. I was responding to whether or not we knew who the—in the investment 

world, which I come from, the question about who is an investor 

is as a function—— 

Mr. MICA. Well, he was trying to find out what kind of relationship and if you knew people that you were giving these loans to. 

The question has always been about what type of communications, 

and it appears that communications that were personal in nature 

also took place with these people who had a financial stake, correct? 

Mr. SILVER. Well, yes, I do know them personally. Personal communications did take place. 

Mr. MICA. Okay, so you have been with this Third Way think 

tank since you left? 

Mr. SILVER. I am sorry. I apologize. Again, sir? 

Mr. MICA. Have you been with Third Way? It is a think tank? 

Mr. SILVER. Yes, sir. 

Mr. MICA. Have you done any other consulting work or received 

any compensations from anyone else other than Third Way since 

you left DOE? 

Mr. SILVER. Yes, sir. I am on the board of several privately held 

companies. 

Mr. MICA. Any of these firms receive Government assistance? 

Mr. SILVER. No, sir. 

Mr. MICA. None of them? 

Mr. SILVER. None. 

Mr. MICA. What about your relationship to some of the individuals that I just mentioned? What about contacts post-employment 

with Mr. Doerr and Aaron? 

Mr. SILVER. I am sorry, can you repeat the question? 

Mr. MICA. I mentioned two individuals in particular which you 

had personal communications and also received these loans or assistance. What has been your relationship with them post your employment with DOE? 

Mr. SILVER. I maintain a personal relationship with them, but I 

have no professional or financial relationship with either. 

Mr. MICA. Do either of them or any of the firms you were associated with contribute to this Third Way? 

Mr. SILVER. No, sir, not to the best of my knowledge. 

Mr. MICA. To your knowledge? 

Mr. SILVER. Not to the best of my knowledge. 

Mr. MICA. Okay. 

Thank you, Mr. Chairman. 

Mr. JORDAN. [Presiding] I thank the gentleman. 

The gentleman from Virginia is recognized. 

Mr. CONNOLLY. Thank you, Mr. Chairman. 

Welcome to our panel. You have to understand I am not quite 

sure what we are doing here today. I guess it is to try to create 

a breathless scandal, another one. If we really want to look into the 

misuse of emails and the blending of political, personal, and professional, we really ought to be calling a number of officials from the 

previous administration back here, because that was pretty egregious, actually, where there was a deliberate circumvention and 

65 

then destruction, Mr. Ferriero. They weren’t archived; 81 of them. 

Eighty-one individuals. Systematic. This isn’t systematic. 

My colleagues seem to want to make a case study out of poor Ms. 

Jackson, who is guilty of the crime of trying to protect the environment of the United States and, as far as I can tell from the evidence, tried her best to, among many, many other things she is 

dealing with, make sure she got her emails right. And when they 

weren’t right she corrected it. 

Now, I want to make sure, though, that I am being fair to you, 

Ms. Jackson, because if you are this evil genius who is trying to 

misuse Government property and eviscerate the concept of transparency for all time, we want to get that on the record. So let me 

make sure I am following what happened. When you became the 

administrator of the Environmental Protection Agency, you were 

assigned two EPA.gov email addresses, is that correct? 

Ms. JACKSON. Yes, sir. 

Mr. CONNOLLY. And I am sure, given all you were facing after 

the economic collapse that was overseen by the previous administration, you were really focused like a laser beam on these two 

email addresses you were given. I mean, you just studied them; you 

wanted to make sure they were going to work. You called people 

in to brief you. I mean, you spent your time on that, right? 

Ms. JACKSON. No, sir. The career staff set up the accounts, as 

they had for previous administrations. 

Mr. CONNOLLY. Stop right there. So this wasn’t unique to you? 

Ms. JACKSON. No, sir. This was a practice that had become common through several administrators before me. 

Mr. CONNOLLY. So, for example, your predecessor in the Bush 

Administration and your predecessor in the Clinton Administration 

were similarly given two email addresses, is that correct? 

Ms. JACKSON. I can’t confirm the Clinton Administration, I don’t 

know, but from media reports I know that is absolutely true for the 

Bush Administration. 

Mr. CONNOLLY. Okay. So then they had to figure out a name for 

your account, is that right? 

Ms. JACKSON. Yes, sir. They asked for a name. 

Mr. CONNOLLY. So why wouldn’t they just say Lisa Jackson? 

Ms. JACKSON. Well, I suggested Admin Jackson because it was 

easy to remember. 

Mr. CONNOLLY. And what did they say? 

Ms. JACKSON. Career staff recommended not to use something 

easily searchable because our database was searchable, and if people could search and find it, then that would negate the advantage 

of having a secondary email account. 

Mr. CONNOLLY. Someone could actually, who shouldn’t have access to what you were trying to do, hack in. 

Ms. JACKSON. Well, it just meant you would get too many emails 

to be able to use the account. 

Mr. CONNOLLY. Right. Well, there is that too. But, also, someone 

could easily, no homework, no problem, don’t even need to get sophisticated, it is under Lisa Jackson. And they thought that was 

prudent not to do. 

Ms. JACKSON. Apparently that is what they had learned through 

experience. 

66 

Mr. CONNOLLY. Okay. So the name used was Richard Windsor, 

is that correct? 

Ms. JACKSON. That is correct. 

Mr. CONNOLLY. And throughout your tenure that secondary 

email account was used for official business and subject to the 

FOIA, Freedom of Information Act, is that correct? 

Ms. JACKSON. Yes, sir. I used it every day. 

Mr. CONNOLLY. So it wasn’t misused? 

Ms. JACKSON. Sir, it is an EPA account; it was set up that way 

so that information could move into it and be captured and, in fact, 

that is exactly what happened. It was my practice to use it that 

way so that they could be captured. And EPA is in the process of 

releasing thousands of those emails. 

Mr. CONNOLLY. Well, I am just sorry, Ms. Jackson, that you are 

a convenient target to demonize another official from this Administration and try to make something bigger than it is. 

Mr. Gensler, in CFTC, I am reading your testimony and you 

said, I have directed the executive director and the general counsel 

to enhance the agency’s training on the Federal Records Act and 

transparency in Government and to promote further an environment that supports telework and flexible schedules. 

I was intrigued by that. I am a big champion of telework, so I 

am glad you are going to promote that. But, obviously, emails matter a lot if you are going to be doing that. Could you just expand 

a little bit on that in terms of doesn’t that pose some challenges, 

too; not just technological, but security? 

Mr. GENSLER. It does. As I have come to learn more about this, 

I think there are three related issues: transparency laws, like the 

Federal Records Act and FOIA, which really are about enhancing 

the public’s awareness and trust in Government; information security for sure, because we don’t want breaches; and then, thirdly, 

just the technology itself. 

And I am not a technology expert, but I would say when I came 

to the agency we did not have a robust training mechanism either 

on the Federal Records Act or on technology. I am the chairman 

of the agency and I take full responsibility, and I do think we can 

and need to do better, so that is why I have directed the appropriate senior people at our agency, let’s go back and make sure that 

when we bring people onto the agency in their first week, not 

months later, not even years later, but they really get robust training about everything that David Ferriero wants us to get. 

But also that we promote telework in a way that there is efficient means to see that email or other documents through various 

access devices when you are at home, but access devices that comply with the Federal Records Act. So it is doing both. And this 

third sort of prong is information security. 

Mr. CONNOLLY. Mr. Chairman, would you allow me an extra 

minute? Because we went six minutes over time. I thank the Chair; 

you have always been fair. 

Mr. Ferriero and Mr. McLaughlin, to this point, I would like you 

to just address, all right, put aside whether somebody systematically, deliberately circumvents the law. That is a fair concern if it 

is occurring. My sense is that overwhelmingly what goes on here 

is we are trying to adjust to the technology, we are trying to meet 

67 

multiple goals; compliance with this law, compliance with that law, 

promoting telework, which is also the law, I might add, to say 

nothing of the core mission, by the way, not incidental. So, you 

know what, sometimes we slip up. 

Sometimes on my official account my daughter sends me a picture that has nothing to do with my business. I have multiple accounts; I have Facebook, I have Twitter. I have to remember which 

is political and which is official and which is personal, and I am 

busy, and sometimes with the best of intention I might slip. 

Could you talk about that a little bit, in terms of both the technological challenge of that, Mr. McLaughlin and, Mr. Ferriero, the 

issue of compliance? Because we do need to be fair to people in 

terms of technology sometimes poses a challenge and human beings 

make mistakes, versus this pernicious, insidious desire to circumvent the law because there is something awful going on and we 

are going to get to the bottom of it. 

Mr. FERRIERO. So the common theme for me, as the archivist, in 

listening has to do with exactly what this new directive is addressing, and that is the need for getting serious in the Federal Government about compliance with the Federal Records Act; the need for 

training; the need for adequate technology; the responsibility of a 

senior agency official to take responsibility in the agency; better 

certification of records managers; creating the records manager job 

description in the Federal Government, which does not exist now. 

This is the development of a new culture around records that involves the inspector general, legal counsel, the CIO, the entire 

agency in helping make the transition to electronic records much 

more robust and, as the chairman said when he opened this hearing, to make it possible for Americans to know what is going on. 

That is the purpose of the keeping of the records. 

Mr. MCLAUGHLIN. Mr. Connolly, it is a huge conundrum, and actually what this debate sort of strikes me as is yet another example 

where I suspect we will catch up with email practices and policies 

and the technologies for capturing them right at the moment that 

everything is shifting over to new proprietary platforms, new messaging services, what is called over-the-top. 

So, for example, you may be used to doing SMS text messaging 

on your phone. If you were in your twenties, you would be doing 

something which looks and feels the same, but is actually an app 

on your smartphone that is using a completely parallel system 

where the traditional governmental techniques for capturing that 

text message don’t even exist. 

And if I could maybe add a fourth idea to the three that I laid 

out in my prepared testimony, just from listening, one thing that 

is clear is that as the technologies evolve rapidly, agency practices 

have to keep up. They will not keep up technologically, but the 

human practices of training, periodic reminders, and, if I were to 

add a fourth idea to my list, it would be a departure checklist, so 

that as you are leaving the agency you get a checklist where you 

go through with counsel or with somebody from the relevant 

records management official in the agency and you go through your 

private accounts and you do some of the obvious things that you 

should do. 

68 

In my case this happened when a FOIA request came in. So I 

sat down with a lawyer and we went through my personal account; 

we typed in the searches, we got those emails, most of which had 

been captured and forwarded over, but some of which hadn’t. I 

think I am like a poster child for a typical mid-level official who 

tries to be conscientious and misses some things. That is what happens. 

So a regular administrative practice can make up for a lot of the 

technological gap that is going to continue to exist. 

Mr. CONNOLLY. Mr. Chairman, thank you so much. 

Mr. JORDAN. I thank the gentleman. 

And no one argues that there is going to be inadvertent use of 

some personal accounts, I think, but what we are talking about 

here is thousands of pages, in the case of Mr. Silver, thousands of 

pages of emails which, frankly, the last time we had Mr. Silver in 

front of the committee we didn’t have all those. We now do. 

So I want to go back to where, Mr. Silver, we are starting with 

you. I want to go back to where some of my colleagues were earlier, 

specifically an exchange you had with Representative Gowdy, 

where Mr. Gowdy said convenience may be an explanation for why 

people enter things on their personal account instead of their work 

account. Would you also agree that concealment may be a motive 

for folks who want to use their personal account and not their official account? Your response from the transcript, well, it certainly 

was not my motive, sir. Pretty strong and emphatic language. And 

yet we have this email that I think the chairman has already cited, 

that we can probably put on the screen, where you are communicating with a Mr. Wright, Morgan Wright, and you say don’t ever 

send an email on the Department of Energy email with private addresses. That makes them subject to subpoena. 

So I just want to ask you, I think the obvious question, the conclusion many would reach is it looks like you weren’t being square 

with Mr. Gowdy when you answered his question back on July 

18th, 2012. 

Mr. SILVER. Congressman, all I can say again is that I was, that 

I was not trying to evade anything, and that the email that you 

have put up here was a reminder, an admonition to a small group 

of staff. 

Mr. JORDAN. So why not send that admonition back on your Government account? Why send it on your personal account? 

Mr. SILVER. To be candid, I don’t know what happened there. I 

don’t remember where I was. 

Mr. JORDAN. I tell you what I think happened. I think you were 

trying to conceal it. 

Let’s go to the next email. And the reason I think you were trying to conceal it is because you were, we talked about this the last 

time you were with us. I wish I would have had this email the last 

time we got together. But I think you were trying to help your 

friends. We got an email from Mr. Lord, CEO of BrightSource. 

BrightSource got money from the 1705 loan guarantee program, 

isn’t that correct, Mr. Silver? 

Mr. SILVER. Yes, they did. 

69 

Mr. JORDAN. Yes. And here in this email you are talking about 

Mr. Lord, CEO of an organization, asking to get taxpayer money. 

You invite him to stay at your house, guest bedroom is ready. 

Go to the next email. We talked about this the last time you 

were with us, too, Mr. Silver. This is an email exchange between 

you and Mr. Willard, where, again, they are asking to get taxpayer 

money and they ask you to write a letter that is going to go to the 

White House chief of staff. Pretty important person, wouldn’t you 

agree, Mr. Silver? White House chief of staff pretty important. 

They ask you to edit the letter that John Bryson, who would later 

become Secretary of Commerce, who is the chairman of the board 

of BrightSource, they ask you to edit a letter that you are going 

to send to the White House chief of staff. 

So it seems to me just common sense would say you are concealing things using private email accounts because you are trying 

to help your buddies get taxpayer money. And, in fact, you are 

doing it so much, you are so focused on helping your friends get 

money in this program, you are editing the letters that they are 

going to send to the White House. Now, that is unbelievable. Don’t 

you think taxpayers would probably say, wait a minute, something 

doesn’t quite look kosher here? 

Mr. SILVER. Congressman, as I said the last time you and I had 

this conversation—— 

Mr. JORDAN. You did edit that letter, right? 

Mr. SILVER. I did edit a letter. 

Mr. JORDAN. That letter went to Bill Daly, White House chief of 

staff, right? 

Mr. SILVER. Wrong. 

Mr. JORDAN. All right. But you edited it and it was supposed to 

go to Bill Daly. And you say in there we want the White House to 

quarterback this loan closure between Management and Budget 

and Department of Energy, right? 

Mr. SILVER. Congressman, if you read—— 

Mr. JORDAN. That is what it says. You wrote it. 

Mr. SILVER. If you read the first two sentences of that email, you 

will see that I say I don’t think this is a particularly good idea. But 

the point I made to you before—— 

Mr. JORDAN. But you are making my point, because John Lord 

was your friend, the same guy you invited to stay at your house, 

you were willing to do it even though you didn’t think it was a good 

idea. 

Mr. SILVER. The loan had already been conditionally approved. It 

had been approved by the career staff at the Department of Energy. It had been approved by the career staff. 

Mr. JORDAN. Mr. Silver, I think you are missing the point. I 

think you are missing the point. 

Mr. SILVER. No, sir. 

Mr. JORDAN. No, no, no. 

Mr. SILVER. Sorry. 

Mr. JORDAN. Mr. Gowdy asked you a specific question. We didn’t 

have this email. We got it two days after the hearing was over, conveniently for you. We didn’t have that email, so you could answer 

Mr. Gowdy and say concealment wasn’t part of my motive, even 

though we have an email you send on your private email account 

70 

telling people don’t ever give Department of Energy addresses on 

email; might be subject to subpoena. And we have you helping your 

friends here. I mean, that is what the record clearly shows. I think 

anyone with common sense could make that conclusion. 

And to add insult to injury, this is the part we forget, the taxpayers not only had it concealed from them; their representative, 

Mr. Gowdy, was not only lied to, the program had 22 of the 26 companies that got money had a credit rating of BB-, six of them went 

bankrupt, taxpayers have lost millions of dollars. 

The taxpayer got the shaft all the way around in this program. 

Your friends got helped. You weren’t square with Congress. And finally, finally we have, and I think the chairman brought this up, 

finally we have your lobbyist—let’s put that one up too. This, to 

me, adds insult to injury. Finally we have your lobbyist saying to 

the committee just a couple days ago, don’t direct any questions to 

Mr. Silver. 

Now, this is unbelievable. You can mislead a member of Congress when he is asking questions; you can help your friends; you 

can lose billions of taxpayer money and still have the gall for your 

lobbyist to ask members of Congress not to ask you any questions. 

Now, do you think the taxpayers might take offense to that whole 

scenario, that whole story, that whole narrative, which is absolutely proven by the facts in front of us? 

Mr. SILVER. I think, Congressman, that that is a wholesale 

mischaracterization of what happened. 

Mr. JORDAN. Did you not send that email that says don’t do this, 

it could be subject to subpoena? Did you send that email? 

Mr. SILVER. I did send that email. 

Mr. JORDAN. Did you edit a letter from the CEO of BrightSource, 

the email where the CEO of BrightSource asked you to edit a letter 

from the chairman of the board of BrightSource going to the White 

House chief of staff, is that true? 

Mr. SILVER. Only after they had already received the conditional—— 

Mr. JORDAN. You edited that letter, right? 

Mr. SILVER. I did. 

Mr. JORDAN. Okay. And is it not true that your lobbyist asked 

us not to ask you questions? 

Mr. SILVER. I know nothing about that, sir. 

Mr. JORDAN. Well, is this individual your lobbyist? 

Mr. SILVER. It was brought up. 

Mr. JORDAN. No, no, that is a yes or no. Is she your lobbyist? 

Mr. SILVER. No. I don’t have a lobbyist, sir. I don’t know anything about this topic. 

Mr. CUMMINGS. Mr. Chairman, would the chairman yield? 

Mr. JORDAN. I would be happy to yield. 

Mr. CUMMINGS. I think, first of all, there is nothing wrong with 

your line of questioning, but Chairman Issa and I agreed, I 

thought, that we would look into that particular issue because it 

is an attorney-client situation. But he and I expressed concern. I 

don’t know whether you were here, and that we would look into it 

jointly off the record. 

Mr. JORDAN. I appreciate it. 

71 

Finally, isn’t it true that Solyndra, Beacon Power, Abound Solar, 

VPG, and Fisker have all filed for bankruptcy and all received taxpayer money? 

Mr. SILVER. Yes, which brings the total loss to 3 percent of the 

portfolio. 

Mr. JORDAN. Which is millions and millions of dollars, right? 

Mr. SILVER. And a fraction of what Congress assumed when they 

appropriated funds for the program. 

Mr. JORDAN. What is your point? Taxpayers lost money. 

Mr. SILVER. My point is that not every investment will be successful, but the vast majority have been. 

Mr. JORDAN. So the fact that taxpayers lost money, that is a success story? 

Mr. SILVER. The program is a success. 

Mr. JORDAN. Twenty-two out of 26 companies had a BB-credit 

rating; no one in the private sector, you guys go ahead and do it, 

six of them go bankrupt, and that is a success? 

Mr. SILVER. The BB-, sir, is a function of a speculative rating by 

a ratings agency. 

Mr. JORDAN. Well, it looks like you probably should have paid a 

little more attention to it at least for the six that went bankrupt. 

Mr. SILVER. The ratings are included in the analysis that is undertaken by the professional career staff. 

Mr. JORDAN. Mr. Silver, you lied to Mr. Gowdy, you helped your 

friends, taxpayers lost a bunch of money, and your lobbyist had the 

gall to say, members, don’t ask him questions. That is what took 

place. 

Mr. SILVER. I did not lie to Mr. Gowdy at all, sir. 

Mr. JORDAN. And I will finish here. So it is not concealment 

when you tell someone don’t do this, it could be subject to subpoena? That is not concealment? 

Mr. SILVER. It is not the way I intended it. 

Mr. JORDAN. But the common taxpayer who paid for these programs, for the six companies that lost millions of dollars, that went 

bankrupt, the taxpayer might think different. The taxpayer might 

say, you know what, that sure looks and sounds like concealment 

to me. 

Mr. SILVER. I think it was inartfully written and I can understand that there is a different interpretation, but it is not what I 

meant, sir. That is all I can tell you. 

Mr. JORDAN. All right, I thank the gentleman. 

Now recognize Mr. Gosar, the gentleman from Arizona. 

I stand corrected. The gentleman from Michigan is recognized. 

Mr. BENTIVOLIO. Thank you, Mr .Chairman. 

The Washington Post reported that over the past 12 years John 

C. Beal was often away from his job as a high level staffer at the 

Environmental Protection Agency. He cultivated an air of mystery 

and explained his lengthy absences by telling his bosses that he 

was doing top secret work, including for the CIA, in some capacity. 

For years, apparently, no one checked. Now Beal is charged with 

stealing nearly $900,000 from the EPA, actually from the taxpayers, by receiving pay and bonuses he did not deserve. 

72 

My question is for Lisa Jackson. Did your aliases, Richard Windsor, win a scholar of ethical behavior award or any other award or 

certificate from the EPA? 

Ms. JACKSON. When I used my secondary official EPA account to 

take training—— 

Mr. BENTIVOLIO. As Richard Windsor. 

Ms. JACKSON. It was Windsor.Richard@EPA.gov. 

Mr. BENTIVOLIO. Okay, so you did win? 

Ms. JACKSON. No, no, no, I didn’t answer your question yet. 

When I used that account to take any type of training, which I 

thought was an important thing for me to do as leader of the agency, the end of the training certifies completion of training in the 

name on the account. So I am not the administrator of the EPA 

any more; I am a private citizen, sir. You can direct your question 

to EPA as to what was awarded. But what I can say is that I completed the training that I was supposed to. 

Mr. BENTIVOLIO. And you received a certificate. 

Ms. JACKSON. I did not receive—— 

Mr. BENTIVOLIO. Well, Mr. Windsor. I am really confused. 

Ms. JACKSON. Sir, we have already gone over that. The use of a 

secondary name was common practice, is common practice. The archivist has already said that there is nothing wrong with having 

additional official accounts, and that those accounts need to be 

named. Now, you can quibble with the name if you like, but what 

I did was to do Government business on a Government account. 

Mr. BENTIVOLIO. Well, the name Mr. Beal apparently must have 

done the same thing. 

Ms. JACKSON. Sir, if you have questions about Mr. Beal, I suggest you direct them to the agency. 

Mr. BENTIVOLIO. Thank you. During the training that won your 

alias, Richard Windsor, award or certificate from the EPA, did any 

part of the training remind you that using an alias for official business was prohibited? 

Ms. JACKSON. No, sir. In fact, the archivist earlier stated that 

one may have secondary or multiple official Government accounts. 

I had a secondary official Government account, like my predecessors before me, and that was done for time management and to 

be able to do my job. 

Mr. BENTIVOLIO. In light of this story, I really have to ask did 

Richard Windsor receive any kind of pay from the EPA on top of 

the salary you already received as Lisa Jackson? 

Ms. JACKSON. I don’t even understand your question, sir. 

Mr. BENTIVOLIO. Okay. Well, let me ask you another question. At 

any time during your service with the EPA, did you receive a 

bonus? 

Ms. JACKSON. I don’t believe that—— 

Mr. BENTIVOLIO. Did you receive any pay whatsoever as Richard 

Windsor? 

Ms. JACKSON. Sir, first off, I worked for the EPA for 15 years. 

I received bonuses as a career employee. May I assume you are 

asking about my time as EPA administrator? 

Mr. BENTIVOLIO. Yes. 

Ms. JACKSON. When I was EPA administrator, I received no salary increase or bonus. 

73 

Mr. BENTIVOLIO. Okay, thank you. 

Mr. GOSAR. [Presiding] I thank the gentleman. 

Mr. McLaughlin, I think you brought some interesting ideas to 

the table. In the private sector, I am a health care professional. 

Particularly with patients, we are very, very, very careful, so we 

have pre-check lists when we have patients or people that are 

going to deal with patient information. So I like your idea of a postchecklist, but you also have to have a pre-checklist to orient that. 

So I think where I am going with this question is I want to see 

some rectification, and I am not happy with what I hear. 

Mr. Gensler, when you looked at the process, did you feel like it 

was right? 

Mr. GENSLER. I think, Mr. Chairman, that we kind of need to do 

better. I look at this, our training was not robust at the agency. I 

am the head of the agency; I take full responsibility. I think we 

have to have better training. But I also think we need to tighten 

and enhance our policies because, as the archivist laid out just yesterday for the first time in writing, directly speaking to personal 

email, we need to narrow the use of it and, when it is used, to get 

that into Federal records. Fortunately, in my case, 99 percent was 

already in a Government system somewhere, but it still left that 

1 percent. So I have learned a lot in these three or four months 

looking at this, that we need to do better, and I applaud this committee’s efforts with regard to the House bill that you are trying 

to move forward on this. 

Mr. GOSAR. So I am a very big person on personal accountability, 

personal responsibility. Leadership in my office stopped with me, 

whether it was my hygienist, whether it be my dental assistant or 

my receptionist. Anything wrong, it was accountable to me. It 

seems to me that we need some type of a third party, would you 

not agree, for oversight, that has a little bit more jurisdiction than 

just an inspector general? I am alluding, maybe, to the Department 

of Justice. 

Mr. GENSLER. Well, I know our laws are vigorous. I am not familiar enough with the Federal Records law to how it should be 

amended, but our inspector general raised this, looked at it specifically for Congress, said that there were no laws that were violated. 

Mr. GOSAR. Mr. Ferriero, would you agree that we need to have 

some different type of teeth in here? Because this is my second 

term of Congress and I have no ability as a member of Congress 

to actually get records in many cases, whether it be from previous 

administrations or this Administration. It is part of my constitutional duty. Do you not think that we also ought to have the Department of Justice being involved in some type of oversight of 

these records? 

Mr. FERRIERO. I think that part of this education process for each 

agency and reminding the inspector generals, which I have done 

personally at their annual meeting, my chief records officer has 

done, that they have a role to play, too. It is not something that 

has been followed through to its greatest extent. 

Mr. GOSAR. Are there any other things that you can see for expedience of the records? Because we draw this out in court proceedings. Do you have some other ideas in regards to how we would 

74 

approach this so that we actually have a speedier release of documentation? 

Mr. FERRIERO. Well, I think that the Capstone system, which we 

have instituted, trialed in the National Archives over the past several months, and attached to my testimony are kind of the outline 

of that process, goes a long way to address some of the problems 

that you have heard this morning. 

Mr. GOSAR. Okay. 

Ms. Jackson, did it feel like it was wrong, the practice? I mean, 

I got the feeling, from listening to both sides here, that your comment was, well, previous administrations had done it. That is not 

an excuse. Did it feel like it was wrong? 

Ms. JACKSON. No, sir. I feel as though I did everything I could 

to comply with the law and the policy as it was explained and as 

I understood it. 

Mr. GOSAR. Did you even question the practice, I mean, when it 

was first proposed to you? 

Ms. JACKSON. As I mentioned, I questioned, why can’t I just have 

a name, Admin Jackson, on the account. But I did not question the 

secondary email account because it was practice. And as we have 

heard, it was used commonly and is recognized by the archivist as 

being an okay practice as long as judgment is used to ensure that 

if anything is in the personal account, that it is forwarded in for 

record-keeping purposes. 

Mr. GOSAR. But that leaves a lot for the individual, and you are 

forthright in regards to acknowledgment of that, but we are subject 

to human display, and there is always that question in human display. 

Ms. JACKSON. Absolutely, sir. I agree that there is an exercise of 

judgment implicit in what the archivist is describing. That is exactly what I did to the best of my ability; that is what I worked 

to do every day. So if there are changing requirements, I think 

training is a wonderful opportunity because, as requirements 

change, I think there needs to be a constant awareness of that. 

Mr. GOSAR. So do you actually believe that there also ought to 

be some accountability? I mean, mistakes were made. In the private sector, when I make a mistake, I am liable for it. We have to 

have some added accountability here in the Federal level too. 

Ms. JACKSON. That is exactly why I am here, sir, because I wanted to be here to explain the steps I took to ensure that my records 

were managed appropriately. 

Mr. GOSAR. Do you agree with everything that Mr. Ferriero has 

put forwards in regards to oversight, or is there anything else you 

would like to add? 

Ms. JACKSON. I would simply like to add that I came here today 

because I wanted to be able to explain what I did and why I did 

it, and I believe very strongly that the use of my email account was 

in order to be consistent with the requirements, which appear to 

be changing. So I don’t envy him that job or, sir, frankly, you that 

job because this is a very complex issue. 

Mr. GOSAR. Would you agree with that, Mr. Silver? 

Mr. SILVER. Yes, sir, I would. I am certainly no expert, but everything I heard made sense to me. In my particular situation, I clearVerDate Aug 31 2005 10:45 Dec 18, 2013 Jkt 000000 PO 00000 Frm 00078 Fmt 6633 Sfmt 6633 C:\DOCS\85906.TXT APRIL
75 

ly would have benefitted from additional guidance and training, 

there is no question about that. 

Mr. GOSAR. Do you actually see why we are even making comments? Because it looks like interested discussions should be an 

impartial type of jurisdiction. 

Mr. SILVER. Yes, I am agreeing with you. 

Mr. GOSAR. Okay. Do you see anything that you would propose, 

looking in hindsight, that you actually want to forward? 

Mr. SILVER. I am not terribly qualified to offer up the kinds of 

advice that Mr. McLaughlin did, but I would say that there is 

clearly a challenge with how to handle relationships you have had 

for many, many years prior to coming into these offices. There 

could be some additional clarification and guidance around that. 

Mr. GOSAR. And what about penalties? 

Mr. SILVER. I am unqualified to comment on that, sir. 

Mr. GOSAR. Why not? 

Mr. SILVER. I don’t know what—I defer to the—— 

Mr. GOSAR. Aren’t you a steward of the Federal taxpayer? 

Mr. SILVER. Well, obviously I was. 

Mr. GOSAR. You were. And I think that is the ultimate accountability, don’t you believe? 

Mr. SILVER. I completely agree with you. 

Mr. GOSAR. Okay. 

Mr. McLaughlin, do you have anything you would like to add? 

Mr. MCLAUGHLIN. All I would do is just reiterate my earlier 

point that the world of technology is changing very fast. Anybody 

entering Federal service right now is going to have a multitude, 

greater number of channels and accounts that people can reach 

them on, so the best ideas that I have been able to come up with 

are a pre-checklist, better training, a post-checklist when you are 

leaving so that you go through and make sure you have cleared out 

everything that should have been moved in. 

I have commended the committee for the two clarifications in 

H.R. 1233, which would specify where you have to forward things 

and five days in which to do it, but I still think, for the reasons 

that I have laid out in my prepared testimony, that that is going 

to quickly actually be outdated and inadequate to the task. 

So, anyway, I suggested some other ideas; form language for any 

of your personal accounts that should go out in an auto responder 

and a public profile so that you are instructing people how to steer 

things into your official accounts; making it easier for people to 

communicate with Federal employees even when you want to keep 

the email addresses themselves hidden. 

I think all of these things would help, but ultimately what you 

are depending on is for people to exercise good judgment, and I 

don’t think you can remind them often enough of their responsibilities in order to reinforce what I think is the general goodwill and 

intent of Federal employees across the board. 

Mr. GOSAR. And it always starts from the top within an agency, 

does it not? 

Mr. MCLAUGHLIN. Yes, sir. 

Mr. GOSAR. Thank you. 

Mr. Cummings? 

Mr. CUMMINGS. I am finished. Thank you very much. 

76 

I want to thank the witnesses for being here today. I have to get 

to another hearing. Thank you. 

Mr. GOSAR. With that, I would dismiss this committee. Adjourned. 

[Whereupon, at 11:09 a.m., the committee was adjourned.] 

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Æ 


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