Hi,
Thanks very much for sharing this development, and for your important
work in testing the boundaries of ICANN's access policy. In addition
to our work on Internet governance, my NGO, CLD, is very active on
transparency issues, so this is an interesting intersection for us.
At a glance, I can see a few problems with the DIDP, as compared
against better right to information laws in force around the world. A
public interest test, like the one you mention, is a staple of strong
right to information legislation. However, the DIDP's public interest
test is highly problematic in that, in addition to allowing for
disclosure of material which falls under an exception, it expands the
scope of exempted material so that ICANN can withhold virtually
anything if it believes that the public interest weighs against
disclosure. In progressive right to information laws, the public
interest test is only a mechanism for disclosure of information that
falls under a listed exception, NOT an avenue for withholding
information that doesn't fall under an exception. For example,
Norway's Freedom of Information Act says that:
"Where there is occasion to exempt information from access, an
administrative agency shall nonetheless consider allowing full or
partial access. The administrative agency should allow access if the
interest of public access outweighs the need for exemption."
If, as Ed says, 97% of requests are being partially or fully rejected,
this seems a fairly clear indication that the system is not providing
proper transparency. As a comparator, a nationwide study of different
levels of government in Canada gave the federal government a C grade
for releasing 39% of requested documents in full (better performing
jurisdictions, like the city of Calgary, released 78% of requested
documents in full).
ICANN may not be a government, but they perform an inherently public
function over a shared global resource, and have an obligation to
provide transparency. Proper oversight and public accountability is
only possible with a strong right to information, to allow observers
to get a clear picture of what's going on behind the scenes. I hope we
can view structural improvement of the DIDP as an important shared
goal, and work together to push for a policy which better facilitates
our right of access to information.
Best wishes,
Michael Karanicolas
Senior Legal Officer
Centre for Law and Democracy
On Mon, Aug 24, 2015 at 5:47 AM, Subrenat, Jean-Jacques <[log in to unmask]> wrote:
> Thank you Ed for initiating this DPIP. It will indeed be interesting to see how this is followed up.
>
> It may also be worth examining
> - how the Board Governance Committee is populated (is there an open call to all Board members to send in a Statement of Interest? Who gets to determine its final membership?)
> - how Board Committees are populated, and how their Chairs are chosen (yes, formally all are "elected" by the full Board, but the interesting question is how the initial list is set up, because once that list is made known, no Board member will vote down a colleague).
>
> Jean-Jacques.
>
>
>
>
>
>
>
>
>
> ----- Mail original -----
> De: "William Drake" <[log in to unmask]>
> À: [log in to unmask]
> Envoyé: Lundi 24 Août 2015 10:18:00
> Objet: Re: DIDP: Some Hope
>
> +1 this was a good thing to do and hopefully a precedent, many thanks Ed.
>
> Bill
>
>> On Aug 23, 2015, at 4:58 PM, Avri Doria <[log in to unmask]> wrote:
>>
>> Hi,
>>
>> This is an excellent step forward. Hopeful as I am that ICANN will
>> improve this is a step in the right direction.
>>
>> Thanks for the consistent effort you put into this.
>>
>> avri
>>
>>
>> On 23-Aug-15 10:34, Edward Morris wrote:
>>> Hi everyone,
>>>
>>> Too often we come to the Discuss list with less than positive news.
>>> ICANN has done this, a WG has done that: invariably the news is grim,
>>> without a lot of hope. As representatives of noncommercial users we’re
>>> constantly battling corporate interests, governments, ICANN corporate
>>> and other parties that aren’t as big a supporter of the bottom up
>>> multi-stakeholder model as we are. I guess it’s natural then that it
>>> often seems as if we’re fighting hard just to maintain the status quo.
>>>
>>> The Documentary Information Disclosure Policy (DIDP) is supposed to
>>> function as ICANN’s equivalent of the American Freedom of Information
>>> Act (FOIA). Except it doesn’t work. We did a study a little over a
>>> year ago that showed that over 97% of all DIDP requests were rejected
>>> in part or in full. None of the Requests we’ve filed have ever
>>> resulted in the disclosure of any information not already made public.
>>>
>>> Until now.
>>>
>>> I filed a personal DIDP with ICANN last month to try to get
>>> information concerning ICANN’s contractual information with Westlake
>>> Governance, the New Zealand company contracted to provide an
>>> independent evaluation of the GNSO as part of the wider GNSO Review.
>>> In my view, and that of many here, their work has bordered on the
>>> negligent. In our public filings, both as individuals and in group
>>> form, members of the NCSG have been scathing in their critique of
>>> Westlake’s methodology. My DIDP sought information that would help us
>>> determine whether Westlake met the criteria set by ICANN in awarding
>>> it the contract to conduct the independent review.
>>>
>>> I expected ICANN to reject my DIDP. That’s what they do, or I guess I
>>> should say did. You can find the ICANN response to my DIDP request here:
>>>
>>> https://www.icann.org/en/system/files/files/didp-response-20150717-1-morris-14aug15-en.pdf
>>>
>>> The substance of the response concerning Westlake raises some issues
>>> that need to be considered and responded to. They will be. What I
>>> think is most important, though, is that for the first time I’m aware
>>> of ICANN has released 3^rd party contractual information as a result
>>> of a DIDP Request. In doing so it specifically used a balancing test
>>> that it actually is supposed to use per DIDP rules and procedures but
>>> rarely, if ever, does. Specifically:
>>>
>>> “ICANN has determined that the public interest in disclosing the
>>> remainder of a commercial contract, containing commitments between two
>>> contracting entities, does not outweigh the harm that may be disclosed
>>> by such disclosure”.
>>>
>>> Taken alone, that is not good news. It means we didn’t get all of the
>>> information I asked for. Of course, it also means we got some of it. A
>>> first. I will be filing a Reconsideration Request with the Board
>>> within the week to attempt get ICANN to release more contractual data.
>>> I will be doing so, however, from a much stronger position than I’ve
>>> ever been in before.
>>>
>>> Usually ICANN just dismisses our requests outright, giving us links to
>>> information that is already public, and leaves us having to beg the
>>> Board for any documentation whatsoever, a request they promptly deny.
>>> This time ICANN has acknowledged our right to certain contractual
>>> data, the only question is how much we are entitled to. It will be
>>> very interesting to see how the Board Governance Committee responds to
>>> the forthcoming Reconsideration Request. Where does the Board place
>>> the line in the balancing test between corporate confidentiality and
>>> public disclosure? This is a question the Board will have to address
>>> in responding to my Reconsideration Request. They will do so knowing
>>> that all of those involved in the Accountability effort will be
>>> looking at their response.
>>>
>>> An open and transparent corporation isn’t going to be built in a day.
>>> I did want folks to see, though, that slowly progress is being made in
>>> opening ICANN up, albeit at a very slow pace. Those heavily involved
>>> in the Accountability effort – Robin, Matt, Paul, Brett, James and
>>> Farzi, amongst others – need to be commended for their work. This
>>> initial response to my DIDP request may only be a small step forward
>>> but it is movement in a positive direction. That’s more than we have
>>> had in the past. Let’s hope the Board takes the opportunity my
>>> Reconsideration will afford them to really open things up.
>>>
>>> Best,
>>>
>>> Ed
>>>
>>>
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