ICANN organization (ICANN org or the org) received eight comments, five from community groups and three from individuals on the proposed revisions to the ICANN Documentary Information Disclosure Policy (DIDP) and the proposed responsibility for the Office of the Ombuds or the Complaints Officer in relation to the DIDP. ICANN org appreciates the feedback from the community. All received comments will be taken into consideration, and where appropriate, incorporated into the revised DIDP for Board consideration and approval. With respect to the feedback received regarding the role of the Ombuds and/or Complaints Officer in relation to the DIDP, ICANN org will take these comments into consideration as part of its evaluation of the next steps on these recommendations from the Work Stream 2 of the CrossCommunity Working Group on Enhancing ICANN’s Accountability (WS2).
What We Received Input On
ICANN org needs your input on the proposed updates to ICANN’s Documentary Information Disclosure Process (DIDP) to incorporate recommendations made in the Final Report of the Cross-Community Working Group on Enhancing ICANN Accountability Work Stream 2 (WS2). ICANN org also updated the DIDP Response Process as necessary to fully implement the WS2 recommendations and provides that update for information. ICANN org also needs your input on the proposed responsibility for the Ombudsman or Complaints Officer in relation to the DIDP by responding to the guided questions set forth in this Public Comment proceeding.
|Proposals For Your Input|
Since 2009, ICANN has maintained the Documentary Information Disclosure Process (DIDP) through which members of the public can request that ICANN’s documentary information be made publicly available. ICANN as a matter of course, and as part of its commitment to operating to the maximum extent feasible in an open and transparent manner, already makes a large amount of information publicly available. The DIDP describes the types of information that the public can expect to be available and establishes the ability for members of the public to request ICANN to publish additional documents within its possession, custody, or control. The DIDP obligates ICANN to respond to those requests for documentary information, and ICANN makes all DIDP Requests and Responses publicly available.
The DIDP was initially developed after community consultation in 2009 and was updated in 2012, again after community consultation. As part of the Cross-Community Working Group on Enhancing ICANN Accountability Work Stream 2 effort (WS2), a group of consensus-based recommendations were issued on updating the DIDP, which were approved by the ICANN Board as part of its consideration of the WS2 Final Report.
ICANN org now presents a proposed update to the DIDP to implement those recommendations. For completeness, ICANN org has also identified necessary updates to its DIDP Response Process document to demonstrate the internal operational process changes needed to achieve full implementation of the WS2 recommendations. ICANN org provides the proposed updated internal process document for information.
Evaluation of Proposed Ombudsman Role
One of the WS2 recommendations on the DIDP included some recommendations referencing new roles for the ICANN Ombudsman:
- Recommendation 8.1.13 - The exception for information requests which are ‘not reasonable, excessive or overly burdensome, not feasible, abusive or vexatious or made by a vexatious or querulous individual’ should be amended so that either the Ombudsman or the Complaints Officer automatically revies any decision to use this exception.
- Recommendation 8.1.19 - Ombudsman to have a stronger role in promoting ICANN’s transparency.
- Recommendation 8.1.20 - Ombudsman or Complaints Officer should be tasked with monitoring and evaluation procedures over the DIDP.
Another of the approved WS2 recommendations, Recommendation 5.11, sets out a series of questions that should be evaluated prior to assigning the Ombudsman any non-complaints work, and specifically directed that the Transparency/DIDP recommendations should be considered using the following criteria:
- Whether there is unique value that the Ombuds can add through the proposed role or function?
- Whether the proposed reporting/accountability arrangements may compromise [the Ombuds’] perceived independence?
- Whether the workload of the proposed role/function would limit the Ombuds’ ability to prioritize their complaints-related work?
- Whether any Ombuds’ involvement in the design of new or revised policy or process, meets the requirement of not, in any way, creating a “stamp of approval”?
- Whether the proposed Ombuds input may be seen as a “short-cut” or substituting for full stakeholder consultation?
To fulfill the WS2 Recommendation, ICANN org requests input on these criteria as it relates to the expansion of the Ombuds role beyond the fairness-based complaints that are already within the Ombuds’ responsibilities. Particularly as it relates to the automatic review of ICANN org use of a defined condition for non-disclosure of materials, as well as assigning general monitoring requirements over the DIDP, ICANN org notes that each of these mandated roles for the Ombuds could impact the Ombuds from becoming involved in related complaints that ICANN community members might wish to specifically raise. For example, ICANN’s Reconsideration Process (set out at Section 4.2 of the ICANN Bylaws), includes a role for the Ombuds in evaluating Requests for Reconsideration. If a Reconsideration Request is received regarding ICANN’s handling of a DIDP request, and the Ombuds previously had a mandated review over ICANN’s handling of that DIDP request, the Ombuds would have to recuse themself from participation in the Reconsideration Request process (ICANN Bylaws, Section 4.2(l)(iii)). Similarly, assigning the Ombuds a role in monitoring the DIDP could impact the Ombuds’ ability to participate neutrally in complaints regarding DIDP process matters.
ICANN org further notes that any DIDP requestor, if they believe that ICANN org was unfair in its DIDP response (based on any grounds) already can initiate a complaint with the Ombuds if they wish to do so. Similarly, the ICANN Complaints Office is a mechanism available to any person that has a complaint about ICANN org that does not fall into the jurisdiction of a different complaints mechanism. The Complaints Office remains an available avenue regardless of the specific definition for non-disclosure identified in ICANN’s DIDP response. ICANN org is also interested in receiving input on the expansion of the Complaints Office role as proposed.
ICANN org is interested in learning more about the ICANN community’s view of how the five criteria impact the proposed expansion of the Ombuds role and will incorporate the outcomes of these inputs as appropriate in further updates to the DIDP and related documentation prior to ICANN Board consideration.