ICANN Publication Practices for Board, Litigation, and Accountability Processes
20 December 2019
ICANN org and its constituent bodies operate to the maximum extent feasible in an open and transparent manner, and consistent with procedures designed to ensure fairness. In furtherance of this transparency value, ICANN org's general publication practices are intended to ensure that information contained in documents concerning ICANN org's operational activities, and within ICANN org's possession, custody, or control, is made available to the public unless there is a compelling reason for redaction or nondisclosure.
There are exceptions to this general practice and, if redaction is required or there are grounds for nondisclosure, the smallest amount of material necessary will be redacted or withheld. A summary of the standards and the basis for which materials may be redacted or withheld from publication are outlined below. ICANN periodically will update these publication practices as needed to reflect changes to the ICANN Bylaws or other transparency processes that may be developed in the future.
Documentary Information Disclosure Policy
ICANN org's Documentary Information Disclosure Policy (DIDP) is intended to ensure that information contained in documents concerning ICANN org's operational activities, and within ICANN org's possession, custody, or control, is made available to the public unless there is a compelling reason for confidentiality. ICANN org posts all DIDP requests, responses and documentary information responsive to the DIDP requests on the ICANN website as a matter of course.
The DIDP describes the types of documents that ICANN org is expected to make available. The DIDP also sets out a list of Defined Conditions for Nondisclosure, which describe the reasons that ICANN org might not make information available to the public. The DIDP was developed in consultation with the ICANN Community, and has been the subject of additional public review. The current version of the DIDP will also be available at: https://www.icann.org/resources/pages/didp-2012-02-25-en.
Board Resolutions, Preliminary Reports, and Minutes
ICANN Board resolutions, Preliminary Reports of Board Meetings, and Minutes of Board meetings are made publicly available on ICANN org's website as required by ICANN's Bylaws, Article 3, Section 3.5. These documents are posted at https://www.icann.org/resources/pages/2019-board-meetings. At times, the Board may identify that information contained in those Resolutions, Preliminary Reports or Minutes are not appropriate for publication. The ICANN Bylaws, at Art. 3, Section 3.5(d), set out that the Board may identify that any actions relating to personnel or employment matters; legal matters (to the extent the Board determines it is necessary or appropriate to protect the interests of ICANN); matters that ICANN is prohibited by law or contract from disclosing publicly; and other matters that the Board determines, by a three-quarters (3/4) vote of Directors present at the meeting and voting, are not appropriate for public distribution, shall not be included in the resolutions, preliminary reports, or minutes made publicly available. For any matters that the Board determines not to disclose in the preliminary reports and/or minutes, the Board shall describe in general terms in the relevant preliminary report or minutes the reason for such nondisclosure.
Board Briefing Materials
In June 2010, ICANN org began publicly posting "Board Briefing Materials." These are "Board Decision-Making Materials" that the Board reviews and considers in preparation for each Board meeting. The Board Briefing Materials consist of Board Papers and Board Reference Materials, or "Annexes" as referenced in earlier Board meetings, and are posted at the same time as the Bylaws-mandated meeting minutes. ICANN org maintains the Guidelines for the Posting of Board Briefing Materials ("Guidelines"), which described ICANN org's practices in making these documents available. The Guidelines discuss ICANN's redaction principles, the guiding principles that ICANN org follows when reviewing Board Briefing Materials for publication, as well as the areas (aligned with the DIDP) where ICANN org redacts information from the Board Briefing Materials. When redacting information from Board Briefing Materials, ICANN org uses a standard set of Board Redaction Codes, to provide transparency regarding the basis for the redaction. The Guidelines document includes a chart identifying each of the codes, a description of the purpose of the code, and whether the information that was redacted is subject to review for future disclosure.
As of December 2019, ICANN org commits to an annual review of the information redacted from the Board Briefing Materials, with the expectation that when appropriate, the redactions will be lifted and the information disclosed. For example, the Board typically authorizes the redaction of information relating to ongoing contractual negotiations. However, there may be no reason to maintain the confidentiality of that information once the negotiations have concluded. As a result, ICANN org expects to be able to disclose that information through this annual review process. As of December 2019, ICANN org publishes an ICANN Redaction Register of redacted Board Briefing Materials through which the ICANN Community has increased transparency on why information was redacted, whether the information is subject to review for release, and identification of when such release will occur.
Independent Review Process Materials
Certain documents produced between the parties during Independent Review Process (IRP) proceedings, either at the request of the Panel, the claimant, third parties, or ICANN org, may be designated as confidential for various reasons. Once confidentiality is agreed upon, the parties are required to maintain the confidentiality of such documents, including to the extent they are made part of any filings submitted to the IRP panel or are referenced in any transcribed hearing or final IRP declaration.
The following sets forth ICANN org's procedures for addressing redacted materials, including such documents that are submitted as exhibits to formal papers filed with an IRP panel, and the IRP panel's reference to such documents in a final IRP declaration.
Materials Submitted During Cooperative Engagement Process
Prior to initiating a request for independent review, the complainant is urged to enter into a period of cooperative engagement with ICANN for the purpose of resolving or narrowing the issues that are contemplated to be brought to the IRP. All matters discussed during the cooperative engagement and conciliation phases are to remain confidential and not subject to discovery or as evidence for any purpose within the IRP, and are without prejudice to either party. (See ICANN Bylaws, Art. 4, Section 4.3(e).)
Materials Submitted Prior to the Issuance of the Final IRP Declaration
Once documents are produced under a confidentiality order or agreement during the pendency of an IRP, ICANN org will make every effort to work with the entity that requested the confidential designation in order to: (i) remove the designation; or (ii) redact only those portions of the documents that are particularly confidential (e.g., addresses, telephone numbers and other personal information). This is particularly important for any documents that are attached as exhibits or otherwise referenced in the parties' papers filed in the IRP proceedings.
IRP Hearing Transcripts
Most IRPs are resolved without the creation of a hearing transcript. In the event a transcript is created, documents that are produced under a confidentiality order or agreement will be redacted in the initial transcript. ICANN org will then make every effort to work with the entity that requested the confidential designation to: (i) remove the designation; or (ii) redact only those portions of the documents that are particularly confidential (e.g., addresses, telephone numbers and other personal information).
IRP Final Declarations
ICANN org's goal (and general practice) is to post the final IRP declaration within 24 hours of receipt. ICANN org will continue that practice and redact the declaration as necessary to conform to the IRP panel's requirements and the confidentiality requests of the relevant parties. ICANN org will note at the top of the first page of the declaration, if applicable, that the declaration has been redacted and will note, where possible at the site of each redaction, what party requested the individual redactions, and the basis for the redactions.
Immediately upon posting the redacted version of the final declaration after its receipt, ICANN org will work with all parties that continued to request redactions in order to remove as many of the redactions as possible. No later than fifteen days following the initial posting of the final declaration, if it is determined that some redactions can be removed, ICANN org will post another version of the final declaration, again noting at the top of the first page if the declaration has any redactions and noting, where possible at the site of each redaction, what party requested the individual redactions, and the basis for the redactions.