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Why does it take longer to consider conflict resolution than it would have to re-apply for status?

5 June 2007
By Frank Fowlie

I remain concerned that the handling of the file 06-317 remains inadequate. ALAC was in possession of my report for 85 days before making a reply to the Board for their consideration. This left the Board with 3 working days to deliberate and comment on my recommendations, consistent with the Ombudsman Framework. My Report was submitted on February 15, and the ALAC response is dated May 8, 2007.
The Ombudsman Framework states: Where a recommendation has been made to the Board of Directors, the Board of Directors shall respond to the Ombudsman within 60 days following their next Board meeting following a recommendation.

I have raised a number of concerns with the ALAC reply, as it would appear that a number of the responses, or criticisms of my report, are factually inaccurate. I have urged the ALAC to reconsider these, and to retract their report to correct these errors, but to date, they have declined to do so.
In order to make sure that the Board has the best information before them, I am taking the liberty of responding to points that ALAC has made in its reply, which, at your discretion, you may or may not use to update that reply.
ALAC Reply  page 1, Item 4. The Ombudsman’s interaction with the Committee was marked by misunderstanding on both sides with regard to the roles and responsibilities of the respective offices, leading to some acrimonious exchanges. This is regrettable, and we suggest that the Ombudsman’s office provide a “Dummies guide to the Ombudsman” that explains the role, powers and processes. It is clear from the long interaction with the ALAC that the position of “Ombudsman” does not have meaning in certain other cultures, and ICANN and the Ombudsman should take a proactive role in explaining this concept to those who may not understand it.
Ombudsman’s comment: I would point out that I have provided a number of orientations to ALAC, and I volunteer to attend each and every ALAC meeting conducted at the ICANN Meetings. I note that the Ombudsman Webpages provides basic information about the Office, and Annual Reports in English, German, Spanish, Chinese, French and Arabic. For the last several ICANN meetings a six language multi-lingual brochure on the Office of the Ombudsman is available with all other ICANN print information. I believe that this would constitute the “Ombudsman for Dummies” information that you reference. You may wish to modify or remove that bullet in light of this information.
ALAC Reply page 1, item 5.
We wish to discuss charge of negligence against the ALAC with respect to the process for referral to the Ombudsman’s office. If giving the email contact for the Ombudsman was not sufficient, and if a standard set of information is to be sent to applicants who wish review, this information should have been provided  to the ALAC when the position of Ombudsman was introduced to the ICANN community. It is clear from the extract of the email correspondence quoted that this process was not adequately explained to the ALAC. While ignorance is not a defense, it can be used to show lack of malice in the failure to comply.

Ombudsman’s comment: The issue with respect to the negligence in this matter is not related to the provision of the Ombudsman email address to the complainant, but that to the fact that once the complainant wrote to the ALAC demanding an Ombudsman review, that nothing was done to facilitate the initiation of a complaint by the Office of the Ombudsman, nor to further inform the complainant to of how to access Ombudsman services. Rather, the applicant asked ALAC for an Ombudsman review on October 5, 2006, and on November 22, 2006, ALAC then provided an email address for my Office. In this 6 week gap, ALAC did not inform my Office of the requested review, nor did it advise the complainant of any method to contact my Office. Neither did ALAC simply contact my Office to ask what to do. I note that my Office has provided orientation to the three ALAC staff members over time, and has oriented ALAC on a number of instances. The Office of the Ombudsman does not allege any malicious intent or action on behalf of the ALAC. Negligent is a technical term meaning that something was not done which should have been done. It does not infer malice. Again, you may wish to modify or remove that bullet in light of this information.
ALAC Reply page 2, Item 8.
We are unclear as to the “quick fix” mentioned in the report.
Ombudsman’s comment: The “quick fix” was the suggestion circulated at or around November 22, that the ALAC could reconsider their vote. PDF of this email chain attached.
ALAC Reply page 2, item 9.
The Ombudsman’s office needs to apply its own respect for diversity in setting deadlines with respect to requests for action and information. The ALAC and its constituency consists of volunteers from many countries and many cultures. This means that in some parts of the world, business shuts down for holidays that do not correspond to North American ones. It is incumbent on the Ombudsman’s office to consider these cultural differences in setting deadlines. Just as one would not expect a US business to respond over the Thanksgiving holiday, one cannot expect a German to respond over the long Christmas holidays, the Easter holidays etc, nor a Brasilian to respond over Carnival. The ALAC does take these into consideration, and sometimes this makes our response time longer, but it is important. Also, the Ombudsman must consider that English is not the first language for the majority of the ALAC and its constituency. In this case, misunderstandings may occur, and additional care must be taken to avoid jumping to a wrong conclusion based on a simple difficulty of language.

Ombudsman’s comment: Whilst I understand and empathize with your argument; I must respectfully point out that there is a substantial difference between trying to “cold call” a person to have a conversation during a holiday period, and actually having a conversation at a time and date pre-arranged by participants. Factually, the latter was the case in attempting to speak with your predecessor. I attach a half dozen emails between us from the relevant time period which show those efforts. I point out again the efforts of this Office to diminish linguistic challenges; from multi-lingual documents, to the reception of complaints in any language, with translation conducted through my Office. I would note that the latter was as a suggestion of the ALAC. Finally, I would also remind you that with respect to this file, that I have previously offered to receive communication from any ALAC member in any language, and then conduct translations. Again, you may wish to modify or remove that bullet in light of this information.
In general, while it is not my intent to look at the substantive matter of the ALAC deliberations, I remain concerned that there may be a lack of predictability with the ALS certification process. In the application of an administrative process it should be predictable that persons or entities applying for a benefit or privilege should expect to receive the same response, with all things being equal in the application. In the case of ******, the application was rejected as *******  was considered to be an organization of organizations; rather than an organization of individuals. I note that, in the interim, applications 81, 87, 91, and 95, which all appear to meta organizations, have been approved by the ALAC.
On an administrative process view, the delays in considering my recommendations have now far exceed the 90 day time frame that ALAC promises to process ALS applications in. Therefore, it would have been less time consuming for the applicant to have reapplied for ALS status anew, than the time that it has taken to create an administrative response to my recommendations; which remains outstanding.
I would note that in the interim that what appear to be three other “meta” organizations (organizations made up of organizations) have been approved by ALAC, and that this was the primary reason that the applicant in 06-317 was rejected.















Authors

Frank Fowlie