Karel

You are on point.

But due to delays in following up on appeals, most people/organisations also head to court of law, depending on which one that could dispense the required authorisation to release the information needed faster.

Remmy Nweke

@ITRealms

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On Mon, Aug 31, 2015 at 1:33 AM, Karel Douglas <[log in to unmask]> wrote:

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
>>>>
>>>>