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