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