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
>> >>>>
>> >>>>
>>
>
>