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Board Governance Committee Recommendation on
Reconsideration Request (“RR”) 10-1

On 11 February 2010, the Board Governance Committee (BGC) received a request for reconsideration from Michael Palage, complaining that the preliminary report of the 4 February 2010 special meeting of the Board of Directors had not been posted as of the time of his Request. Mr. Palage requests that the Board should take the following actions:

  1. Provide audio recordings and transcripts in connection with all ICANN Board meetings, “ [r]ecognizing that some content may need to be withheld in according with existing ICANN Board practices, ICANN should be permitted three business days to redact any information deemed sensitive.”

  2. “[A]ny resolutions passed by the ICANN Board should immediately be posted on the ICANN website unless in accordance with Article III, Section 5.2 the “Board determines, by a three-quarters (3/4) vote of Directors present at the meeting and voting, [the resolution is] not appropriate for public distribution”

  3. “[S]taff briefing papers that are provided to the ICANN Board in advance of their Board meeting be publicly posted on the ICANN website in connection with the proposed Agenda seven (7) days before a meeting of the Board. Where appropriate, ICANN may redact elements of a staff briefing paper which contains attorney client privileged material, or other sensitive information as in the case of hostile ccTLD redelegation requests.”

The BGC notes that the preliminary report at issue was posted on 11 February 2010, less than 10 hours after the posting time required in under Article II, Section 5.2 of the ICANN Bylaws, when calculating the posting date by local time at the location of ICANN’s principal office in Marina del Rey, California.

Pursuant to Article IV, Section 2 of the ICANN Bylaws, the BGC has evaluated Mr. Palage’s request and provides the following response and recommendation to the Board:

1. Audio recordings and transcripts

In response to Mr. Palage’s first request, the BGC does not recommend moving to the provision of full audio recordings and transcripts of telephonic Board meetings at this time. Mr. Palage notes that, in response to Request for Reconsideration 04-1, the Reconsideration Committee of the Board (RC), recommended that “if difficulties with posting the preliminary reports continue, the full Board should consider the suggestion to make available audio recordings of all Board meetings.” See http://www.icann.org/en/committees/reconsideration/rc04-1.htm.

While the BGC does not condone the delay in the posting of the Preliminary Report of 4 February 2010, the several hour delay in posting of Preliminary Report for a meeting that concluded at 10:40 pm PST on 3 February 2010 in Marina del Rey does not indicate the continuation of “difficulties with posting the preliminary reports” sufficient to review the determination to not move forward in this manner. Nor does it believe that the delay caused undue harm. The BGC notes that this is the first reported failure to meet the Board posting deadline in approximately five years, indicating a pattern of compliance by the staff in recent years. The BGC did, however, indicate that it will consider further enhancements of accountability and transparency, such as those suggested by Mr. Palage, at a later point in time.

The BGC recommends that the transparency of this process can be improved, and recommends that Article II, Section 5.2 of the ICANN Bylaws be modified in the following way to achieve greater transparency:

  1. No later than two (2) business days after the conclusion of each meeting (as calculated by local time at the location of ICANN’s principal office), any resolutions passed by the Board of Directors at that meeting shall be made publicly available 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. The Secretary shall send notice to the Board of Directors and the Chairs of the Supporting Organizations (as set forth in Articles VIII - X of these Bylaws) and Advisory Committees (as set forth in Article XI of these Bylaws) informing that the resolutions are publicly available.

  2. No later than seven (7) business days after each meeting (as calculated by local time at the location of ICANN's principal office), any actions taken by the Board shall be made publicly available in a preliminary report on the Website, subject to the limitations on disclosure set forth in Section 5.2 above. 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.

    [The current section 5.3 will be renumbered to 5.4]

While the Board is considering the proposed Bylaws amendments, the BGC further recommends that the Board direct the CEO to have staff adopt the 48-hour posting rule for resolutions as set out in above as soon as practicable.

This modification will strengthen ICANN’s transparency and accountability, reducing the time for the posting of resolutions, providing the community with information on the resolutions passed by the Board days in advance of the time now required under the Bylaws. With that prompt posting of resolutions, the time for the posting of the preliminary report will be expanded by two business days, however, the community will be provided with the information on the actions taken by the Board to allow for the prompt posting of the type of information Mr. Palage states he was harmed by not having within the five business day period.

2. Posting of Resolutions

In response to Mr. Palage’s second request, the BGC recommends that the Board adopt the 48-hour posting rule set forth above. While the BGC notes the improvement to transparency that can be realized in providing prompt access to resolutions taken at a meeting, the BGC does not recommend adopting Mr. Palage’s suggestion of “immediate” posting. The 48-hour recommendation stated above sets out a firm standard and expectation for staff to meet. Requiring posting “immediately” would create a non-quantifiable standard subject to being frustrated by the “extenuating circumstances” noted in the Request, and would set the organization up for a cycle of Requests of this type debating the “immediacy” of a posting. The BGC notes that the 48-hour window sets out a maximum time for the posting of resolutions, and encourages staff to post the resolutions as expeditiously as possible. The BGC also recommends that the Secretary provide notice of the posting of the resolutions to the Chairs of the Supporting Organizations and the Advisory Committees to alert the community of the availability of Board actions.

3. Posting of Staff Papers

In response to Mr. Palage’s third request, the posting of staff papers to the Board in advance of Board meetings, the BGC does not recommend that any action be taken on this request at this time. This request for additional information does not address the matter raised for reconsideration (the untimely posting of the preliminary report) and also does not relate to the harm that Mr. Palage claims to have suffered as a result of the failure of posting the preliminary report.

In sum, in response to RR 10-1, the BGC will recommend to the Board that it consider adoption of the amendment to the Bylaws as set forth above.

* The BGC notes that Mr. Palage’s request was sent directly to the Chair of the BGC, and was subsequently submitted through the proper channel, to reconsideration@icann.org. The BGC also notes that references to “11 July 2010” in portions of RR 10-1 appropriately refer to “11 February 2010”.

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