Hi Rafik,
I think it is a good idea to mention this in our public comment, I think
there is no harm in emphasizing it. Also I think for people who would like
to contribute we can have a group to discuss and think about strategies etc
so that we can effectively contribute to Work Stream 2.
As we are also talking about Work stream 2 I wanted to remind all that
Jurisdiction is on the agenda of WS 2 and they are going to discuss it. I
think we might need to also discuss this with NCSG or have a group on
Jurisdiction. I am not sure if it's good to have too many groups but I
think we should actively engage with these discussion and one way is to
discuss it before in our group.
On 31 August 2015 at 08:23, Rafik Dammak <[log in to unmask]> wrote:
> 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
>>>>> >>>>
>>>>> >>>>
>>>>>
>>>>
>>>>
>>
>
--
Farzaneh
|
