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Reconsideration Request 04-1

4 March 2004

Subject: Violation of Article III, Section 5.2
From: Bret Fausett
Date: Mon, 15 Sep 2003 12:40:53 -0700
To: reconsider (at) icann.org, Bret Fausett

Dear Reconsideration Committee,


This Request for Reconsideration arises out of similar circumstances as Request 00-4, filed on 6 May 2000 and granted on 22 May 2000:

http://www.icann.org/committees/reconsideration/fausett-request-6may00.htm
http://www.icann.org/committees/reconsideration/rc00-4.htm

Specifically, ICANN again has failed to meet its obligations under the Bylaws to provide timely notice of developments during its closed telephonic Board meetings. My reconsideration request, which asks the Board to review and correct this failure, follows below.

Thank you for your consideration.

Bret Fausett
http://www.lextext.com/
fausett@*******.com

a. name, address, and contact information for the requesting party, including postal and e-mail addresses;

Bret Fausett
[address deleted]
fausett@*******.com

b. the specific action or inaction of ICANN for which review or reconsideration is sought;

Failure to post Preliminary Report of Board meeting of 9 September 2003 in a timely manner.

c. the date of the action or inaction;

14 September 2003.

d. the manner by which the requesting party will be affected by the action or inaction;

Deprived of access to information about actions of Board. No "special harm" must be established when ICANN violates the "openness and transparency" aspects of the bylaws. To the extext that some special harm must be established, I am also the registrant of at least two domain names (fausett.com and lextext.com), and in my capacity as a domain name registrant, I am affected by actions taken by ICANN.

e. the extent to which, in the opinion of the party submitting the Request for Reconsideration, the action or inaction complained of adversely affects others;

ICANN's failure to meet the transparency provisions of the bylaws affects all users of the Internet.

f. whether a temporary stay of any action complained of is requested, and if so, the harms that will result if the action is not stayed;

No stay is requested.

g. in the case of staff action or inaction, a detailed explanation of the facts as presented to the staff and the reasons why the staff's action or inaction was inconsistent with established ICANN policy(ies);

Article III, Section 5.2 of the ICANN Bylaws provides a firm, "brightline" rule for publication of Preliminary Reports of all Board meetings. It provides:

2. No later than five (5) days after each meeting, any actions taken by the Board shall be made publicly available in a preliminary report on the Website; provided, however, 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 preliminary report made publicly available. For any matters that the Board determines not to disclose, the Board shall describe in general terms in the relevant preliminary report the reason for such nondisclosure.

See, http://www.icann.org/general/bylaws.htm#III-5.2. ICANN failed to meet this firm deadline.

h. in the case of Board action or inaction, a detailed explanation of the material information not considered by the Board and, if the information was not presented to the Board, the reasons the party submitting the request did not submit it to the Board before it acted or failed to act;

Same as (g) above.

i. what specific steps the requesting party asks ICANN to take-i.e., whether and how the action should be reversed, cancelled, or modified, or what specific action should be taken;

Post the Preliminary Report for the meeting of 9 September 2003 promptly. Ensure that the Board instructs staff on the importance of complying with the transparency provisions of the bylaws and Article III, Section 5 in particular. Given the fact that this is at least the second time that ICANN has violated this provision, the Board should discontinue the practice of holding closed meetings and consider making the audio of all of its meetings, including teleconferences, promptly available following the close of each meeting. (The GNSO Council currently does this, for example). Recording the audio of the meetings and distributing mp3 audio promptly thereafter would not materially increase ICANN's budget but would substantially increase the public's access to ICANN information.

The Preliminary Reports are the only window that the general public has into the telephonic Board meetings. If ICANN cannot meet the obligation of making those reports available in a timely manner, it should discontinue the practice of holding closed meetings.

j. the grounds on which the requested action should be taken; and


Article III, Section 5.2 of the ICANN Bylaws provides:

2. No later than five (5) days after each meeting, any actions taken by the Board shall be made publicly available in a preliminary report on the Website; provided, however, 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 preliminary report made publicly available. For any matters that the Board determines not to disclose, the Board shall describe in general terms in the relevant preliminary report the reason for such nondisclosure.

See, http://www.icann.org/general/bylaws.htm#III-5.2

k. any documents the requesting party wishes to submit in support of its request.

None.

* Note: This request was reportedly submitted on 15 September 2003, but the original e-mail was lost and has not been located. The Reconsideration Committee decided to accept the text of the reconsideration request as posted at <http://blog.lextext.com/blog/_archives/2003/10/15/4576.html> as RC 04-1. ICANN Staff is investigating the implementation of a web-based form that would improve the ability to verify and track incoming requests for reconsideration.

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