Public Comment is a vital part of our multistakeholder model. It provides a mechanism for stakeholders to have their opinions and recommendations formally and publicly documented. It is an opportunity for the ICANN community to effect change and improve policies and operations.
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The language, “Materials, including but not limited to, trade secrets, commercial and financial information, confidential business information, and internal policies and procedures, the disclosure of which could materially harm ICANN’s financial or business interests or the commercial interests of its stakeholders who have those interests. Where the disclosure of documentary information depends upon prior approval from a third party, ICANN org will contact the third party to determine whether they would consent to the disclosure in accordance with the DIDP Response Process.” is broader than previous versions of the DIDP.
Any additional responsibilities or role for the Ombuds’ in the DIDP as assigned via the incorporation of WS2 recommendations, should not remove or replace the opportunity for community members to avail themselves of the Reconsideration Request process or Independent Review process as set forth in Article 4 of the Bylaws. In addition, the questions are not explicit as to whether an expansion of the Ombuds or Complaints Office roles would also create more authoritative and less advisory capacity for the roles in relation to DIDP reviews and requests.
How would conflicting rulings on disclosure between the Ombuds and DIDP be handled? Would this provide a more streamlined/faster complaints process than the Reconsideration Request?
Further, in the background provided to the community in this public comment proceeding ICANN notes, that “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.”. This, however, is not included in the “Review of DIDP Responses” section of the DIDP. Though ICANN also notes that should a community member request a review by the Ombuds on a DIDP Response, the Ombuds would likely have to recuse themselves from their role in any subsequent Reconsideration Request. Clarification of any impacts on existing processes are important in evaluating any proposed change.
If, as noted by ICANN in the background material for this public comment, that a role in reviewing and responding to DIDP Responses could limit or conflict with existing Ombuds responsibilities (e.g. should a community member request a review by the Ombuds on a DIDP Response, the Ombuds would likely have to recuse themselves from their role in any subsequent Reconsideration Request), perhaps the Complaint’s Officer is the more appropriate home for additional review of DIDP Responses.
The Registries Stakeholder Group (RySG) welcomes the opportunity to comment on proposed updates to ICANN’s Documentary Information Disclosure Process (DIDP) and provided feedback on the question.