Hi Karel,
the current public comment is about the proposal with the regard work
stream 1. I was suggesting to add a mention in NCSG (to be submitted)
comment about DIDP so the CCWG can setup a subgroup to work on that . so
collecting the remarks shared here can be a good start.
Best,
Rafik
2015-08-31 9:33 GMT+09:00 Karel Douglas <[log in to unmask]>:
> I have done a lot of work on FOIA matters. The DIDP ( akin to the FOIA )
> is to ensure transparency. In such situations an organisation is not the
> final arbitrator on whether the information is to be disclosed. When a
> request is denied the applicant usually has an appeal to an independent
> body that would consider whether the denial to disclose the information was
> reasonable / lawful. That is an important safe guard for the applicant as
> most organisations are rooted in the old fashion of secrecy and by default
> prefer not to disclose information.
>
> Rafik - Please let me know when comments ( for Stream 2 ) are due for the
> DIDP as I will make a few important points.
>
> regards
>
> Karel Douglas
>
> On Thu, Aug 27, 2015 at 11:35 PM, Padmini <[log in to unmask]> wrote:
>
>> Dear Rafik
>>
>> That sounds like a great idea. I had expressed my concerns before the
>> CCWG about the DIDP process earlier this month and they had assured me that
>> they would take it up as a part of work stream 2. Would be great to have
>> comments in place before that.
>>
>> Regards
>> Padmini
>> On 28 Aug 2015 07:23, "Rafik Dammak" <[log in to unmask]> wrote:
>>
>>>
>>> Hi,
>>>
>>> Thanks everyone for sharing documents and your thought here.
>>> to move forward, we can start with the group of people who are showing
>>> interest on the topic and looking to participate e.g. analysis of DIDP.
>>> With such group we can work on the transparency and DIDP implementation and
>>> provide input including recommendations to CCWG (accountability working
>>> group) on that matter. We can setup ad-hoc mailing to discuss further and
>>> agree on how to proceed.
>>>
>>> On other hand, we can also mention the transparency and DIDP matter in
>>> the NCSG comment that is going to be submitted soon .
>>>
>>> Do we agree to follow this approach?
>>>
>>> Best,
>>>
>>> Rafik
>>>
>>> 2015-08-28 0:08 GMT+09:00 Michael Karanicolas <[log in to unmask]
>>> >:
>>>
>>>> Hi,
>>>>
>>>> Thanks to everyone for sharing their experiences with the system. I
>>>> think it's very good that this conversation is taking place. Use and
>>>> interest in the DIDP are critical for ensuring that transparency is
>>>> taken seriously at ICANN. Without demand, there is no motivation to
>>>> enhance supply.
>>>>
>>>> With that being said, I would be very interested in exploring advocacy
>>>> options to push for structural improvements in the policy. CLD has a
>>>> lot of experience in advocating for transparency among governments and
>>>> other international institutions, but we are a bit new to these
>>>> processes with ICANN. Can someone shed light as to what our options
>>>> might be to push these issues forward? I think that CLD would be happy
>>>> to draft a proper analysis of the DIDP, compared to international
>>>> standards and disclosure policies at comparable institutions, if that
>>>> would be helpful. But once we have concrete recommendations, how could
>>>> we take them forward?
>>>>
>>>> Best wishes,
>>>>
>>>> Michael Karanicolas
>>>> Senior Legal Officer
>>>> Centre for Law and Democracy
>>>>
>>>>
>>>> On Thu, Aug 27, 2015 at 6:37 AM, <[log in to unmask]> wrote:
>>>> > Dear All,
>>>> >
>>>> > Reiterating Michael's point on pushing for structural improvements to
>>>> the DIDP, this may be of interest.
>>>> >
>>>> > Kevin Murphy from Domain Incite had filed a DIDP request with ICANN
>>>> to post more unredacted documents from its Independent Review Process case
>>>> with DotConnectAfrica. ICANN has responded by stating that in their
>>>> consideration of DIDP requests, "we evaluate whether the public interest in
>>>> disclosing documentary information meeting one or more conditions for
>>>> nondisclosure outweighs the harm that may be caused by such disclosure."
>>>> >
>>>> > Expectedly, while ICANN did invoke the “Defined Conditions for
>>>> Non-Disclosure”, it seems the pressure in this particular case seems to be
>>>> working. ICANN has agreed to publish any redacted information that can be
>>>> released without consulting third parties involved by 31st August 2015 and
>>>> have initiated a consultation process with third parties to seek
>>>> authorization for releasing more information.
>>>> >
>>>> > You can read more about this on the Domain Incite Website:
>>>> http://domainincite.com/19190-icann-will-post-more-uncensored-africa-info
>>>> >
>>>> > ICANN's full response is available here:
>>>> http://domainincite.com/docs/DIDP-Response-Murphy-20150727-1.pdf
>>>> >
>>>> > Sincerely,
>>>> >
>>>> > Jyoti Panday
>>>> >
>>>> > ----- Original Message -----
>>>> > From: "Michael Karanicolas" <[log in to unmask]>
>>>> > To: [log in to unmask]
>>>> > Sent: Monday, 24 August, 2015 19:44:00
>>>> > Subject: Re: DIDP: Some Hope
>>>> >
>>>> > 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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