Consideration of Reconsideration Request 17-2

Summary

The Requestor submitted a community-based application for .MUSIC, was invited to, and did, participate in CPE, but did not prevail. On 24 February 2016, the Requester sought reconsideration of the CPE determination (Request 16-5).

The ICANN Board directed the President and CEO, or his designees, to undertake a review of the process by which ICANN organization interacted with the CPE provider (CPE Process Review). The BGC later decided that the CPE Process Review should also include: (1) evaluation of the research process undertaken by the CPE panels to form their decisions; and (2) compilation of the reference materials relied upon by the CPE provider for the evaluations which are the subject of pending Reconsideration Requests concerning CPE. The BGC also placed the eight pending reconsideration requests relating to CPE on hold, including Request 16-5, pending completion of the CPE Process Review.

On 5 May 2017, the Requestor submitted a request pursuant to ICANN organization's Documentary Information Disclosure Policy (DIDP) seeking ten categories of documents and information relating to the CPE Process Review (the DIDP Request), some of which the Requestor had already requested in a prior DIDP request. (See DIDP Request [PDF, 445 KB], attached asAttachment E to Reference Materials.) In its response (DIDP Response) ICANN organization explained that, with the exception of certain documents that were subject to DIDP Defined Conditions for Nondisclosure (Nondisclosure Conditions), all the remaining documents responsive to nine (Items No. 1-9) of the ten categories have already been published. (See DIDP Response [PDF, 78 KB], attached as Attachment F to Reference Materials.) The DIDP Response further explained that all the documents responsive to Item No. 10 were subject to certain Nondisclosure Conditions and were not appropriate for disclosure. (See id.) Additionally, the DIDP Response explained that ICANN organization evaluated the documents subject to the Nondisclosure Conditions to determine if the public interest in disclosing them outweighs the harm that may be caused by such disclosure, and determined that there were no circumstances for which the public interest in disclosing the information outweighed the potential harm of doing so. (See id.)

The Requestor suggests that reconsideration of ICANN's DIDP Response is warranted because ICANN organization violated ICANN's Core Values and policies established in the DIDP and Bylaws concerning non-discriminatory treatment and transparency. (See Request 17-2 [PDF, 960 KB], § 10, Pg. 16, attached as Attachment A to Reference Materials.)

The BAMC considered Request 17-2 and all relevant materials and recommended that the Board deny Request 17-2 because it does not set forth a proper basis for reconsideration for the reasons set forth in the BAMC Recommendation on Reconsideration Request 17-2 [PDF, 123 KB] (the BAMC Recommendation), which have been considered and are incorporated here. (See BAMC Recommendation [PDF, 123 KB], attached as Attachment D to Reference Materials.)

On 12 September 2017, the Requestor submitted a rebuttal to the BAMC's Recommendation (Rebuttal). (See Rebuttal [PDF, 259 KB], attached as Attachment G to the Reference Materials.) The Requestor suggests that: (1) neither ICANN nor the BAMC identify or apply the specific Nondisclosure Condition for each category of document or document itself; (2) ICANN organization misapplied the provision of the DIDP that permits ICANN to disclose information subject to Nondisclosure Conditions if the public interest in disclosure outweighs the harm; (3) "ICANN has closed-off th[e] possibility [of obtaining information about the CPE Process Review] in clear contradiction of its own stated Commitments and Core Values"; and (4) that "ICANN's Board and the BGC remain in ultimate control of any review process initiated by ICANN staff" and therefore DotMusic seeks reconsideration of the "BGC's actions in denying its requests for information." (Rebuttal.)

Facts

The full factual background is set forth in the BAMC Recommendation [PDF, 123 KB], which the Board has reviewed and considered, and which is incorporated here.

On 23 August 2017, the BAMC recommended that Request 17-2 be denied on the basis that Request 17-2 does not set forth a proper basis for reconsideration for the reasons set forth in the BAMC Recommendation [PDF, 123 KB], which are incorporated here.

On 12 September 2017, the Requestor submitted a rebuttal to the BAMC's Recommendation, which the Board has also reviewed and considered.

Issues

The issues for reconsideration are3:

Whether ICANN organization complied with established ICANN policies in responding to the DIDP Request.
Whether ICANN organization was required by the DIDP or established policies to provide the Requestor with "the specific formula used to justify the nondisclosure."
Whether ICANN organization complied with its Core Values, Mission, and Commitments.
The Relevant Standards for Evaluating Reconsideration Requests

Article 4, Section 4.2(a) and (c) of ICANN's Bylaws provide in relevant part that any entity may submit a request "for reconsideration or review of an ICANN action or inaction to the extent that it has been adversely affected by:

One or more Board or Staff actions or inactions that contradict ICANN's Mission, Commitments, Core Values and/or established ICANN policy(ies);
One or more actions or inactions of the Board or Staff that have been taken or refused to be taken without consideration of material information, except where the Requestor could have submitted, but did not submit, the information for the Board's or Staff's consideration at the time of action or refusal to act; or
One or more actions or inactions of the Board or Staff that are taken as a result of the Board's or staff's reliance on false or inaccurate relevant information.
(ICANN Bylaws, 22 July 2017, Art. 4, §§ 4.2(a), (c).) Pursuant to Article 4, Section 4.2(k) of the Bylaws, if the BAMC determines that the Request is sufficiently stated, the Request is sent to the Ombudsman for review and consideration. (See id. at § 4.2(l).) If the Ombudsman recuses himself from the matter, the BAMC reviews the Request without involvement by the Ombudsman, and provides a recommendation to the Board. (See id. at § 4.2(l)(iii).) The Requestor may file a rebuttal to the BAMC's recommendation, provided that the rebuttal is: (i) "limited to rebutting or contradicting the issues raised in the BGC's recommendation; and (ii) not offer new evidence to support an argument made in the Requestor's original Reconsideration Request that the Requestor could have provided when the Requestor initially submitted the Reconsideration Request." (See id. at § 4.2(q).) Denial of a request for reconsideration of ICANN action or inaction is appropriate if the BAMC recommends and the Board determines that the requesting party has not satisfied the reconsideration criteria set forth in the Bylaws. (See id. at § 4.2(e)(vi), (q), (r).)

Analysis and Rationale

The Board has reviewed and thoroughly considered Request 17-2 and all relevant materials, including the BAMC Recommendation. The Board finds the analysis set forth in the BAMC Recommendation [PDF, 123 KB], which is incorporated here, to be sound.

ICANN Organization Adhered To Established Policies And Procedures In Responding To The DIDP Request.

The BAMC concluded and the Board agrees that the DIDP Response complied with applicable policies and procedures. (BAMC Recommendation [PDF, 123 KB], Pg. 13.) In responding to a request for documents submitted pursuant to the DIDP, ICANN organization adheres to the "Process For Responding To ICANN's Documentary Information Disclosure Policy (DIDP) Requests" (DIDP Response Process). (See DIDP Response Process [PDF, 59 KB].) The DIDP Response Process provides that "[u]pon receipt of a DIDP Request, ICANN staff performs a review of the Request and identifies what documentary information is requested . . ., interviews . . . the relevant staff member(s) and performs a thorough search for documents responsive to the DIDP Request." (Id.) Once the documents collected are reviewed for responsiveness, a review is conducted to determine if the documents identified as responsive to the Request are subject to any of the Nondisclosure Conditions set forth on the DIDP web page at https://www.icann.org/resources/pages/didp-2012-02-25-en. If so, a further review is conducted to determine whether, under the particular circumstances, the public interest in disclosing the documentary information outweighs the harm that may be caused by such disclosure. (See DIDP Response Process [PDF, 59 KB].)

Consistent with the DIDP Response Process, the DIDP Response identified documentary information responsive to all 10 items. (See DIDP Response [PDF, 78 KB].) For Items No. 1 through 9, ICANN organization determined that most of the responsive documentary information had already been published on ICANN's website. (See id.) Although the DIDP does not require ICANN organization to respond to requests seeking information that is already publicly available, ICANN organization identified and provided the hyperlinks to 21 publicly available categories of documents that contain information responsive to Items No. 1 through 9. (See id.) The DIDP Response also explained that some of the documents responsive to Items No. 6 and 8, as well as all the documents responsive to Item 10, were subject to certain identified Nondisclosure Conditions and were therefore not appropriate for disclosure. (See id.) The DIDP Response further explained that ICANN organization evaluated the documents subject to the Nondisclosure Conditions, as required, and determined that there were no circumstances for which the public interest in disclosing the information outweighed the potential harm of disclosing the documents. (See id.)

The Requestor suggests that the determinations as to the applicability of the specified Nondisclosure Conditions warrant reconsideration because "ICANN did not state compelling reasons for nondisclosure as it pertains to each individual item requested nor provide the definition of public interest in terms of the DIDP Request." (Request 17-2 [PDF, 960 KB], § 3, Pg. 8.) The BAMC determined, and the Board agrees, that Requestor's position is not supported because ICANN organization did identify compelling reasons in each instance of nondisclosure, which are pre-defined in the DIDP; the Nondisclosure Conditions that ICANN identified, by definition, set forth compelling reasons for not disclosing the materials. There is no policy or procedure requiring that ICANN organization provide additional justification for nondisclosure. (See BAMC Recommendation [PDF, 123 KB], Pgs. 23-24.)

The Requestor asks the Board to "inform the Request[or] as to the specific formula used to justify the nondisclosure position that the public interest does not outweigh the harm." (Request 17-2 [PDF, 960 KB], § 9, Pg. 14.) The BAMC concluded, and the Board agrees, that neither the DIDP nor the DIDP Response Process requires ICANN organization to use or provide a "formula" for determining whether materials that are subject to Nondisclosure Conditions may nonetheless be disclosed. (See BAMC Recommendation [PDF, 123 KB], Pgs. 23-24.)

The Requestor also suggests that nondisclosure "needs to be avoided in order to ensure the procedural fairness guaranteed by Article 3, Section 1 of ICANN's Bylaws." (Request 17-2 [PDF, 960 KB], § 9, Pg. 14.) As the BAMC noted, the DIDP provides the procedural fairness that the Requestor seeks. Consistent with the DIDP Response Process, ICANN organization applied the DIDP, determined that certain of the requested materials were subject to Nondisclosure Conditions, considered whether the materials should nonetheless be made public, determined that the public interest in disclosing the information did not outweigh the harm of disclosure, and explained that determination to the Requestor. (See BAMC Recommendation [PDF, 123 KB], Pg. 24.)

Finally, the Requestor suggests that reconsideration is warranted because the Dot Registry Independent Review Process (IRP) Final Declaration gave rise to a "unique circumstance where the 'pubic interest in disclosing the information outweighs the harm that may be caused by the requested disclosure.'" (Request 17-2 [PDF, 960 KB], § 3, Pg. 10.) The BAMC concluded, and the Board agrees, that the Dot Registry IRP Final Declaration is not an established ICANN policy or procedure, and the Board's acceptance of aspects of the Final Declaration does not make it so. Moreover, the Dot Registry IRP Final Declaration did not establish that the public interest in disclosure outweighs the potential harm for each and every document in ICANN organization's possession related to the CPE Process Review. (See BAMC Recommendation [PDF, 123 KB], Pg. 24-25.)

As such, the BAMC concluded, and the Board agrees, that Requestor does not claim that the DIDP Response is contrary to the DIDP Response Process, nor does the Requestor provide any information to show how ICANN organization's Response violates ICANN's Mission, Commitments, or Core Values. (See id.)

The Reconsideration Process is Not a Mechanism for "Instructing" ICANN Staff on General Policies Where No Violation of ICANN Policies or Procedure Has Been Found.

The Requestor asks the Board to "recognize and instruct Staff that ICANN's default policy is to release all information requested unless there is a compelling reason not to do so." (Request 17-2 [PDF, 960 KB], § 9, Pgs. 13-14.) However, the reconsideration request process is not an avenue for "instruct[ing]" ICANN staff concerning ICANN's policies in general, where no violation of ICANN policies or procedures has been found, as is the case here. Further, as the BAMC noted, and the Board agrees, to the extent the Requestor is challenging the DIDP Response Process or the DIDP itself, the time to do so has passed. (See BAMC Recommendation [PDF, 123 KB], Pg. 25-26.)

The Requestor's Unsupported References to ICANN Commitments and Core Values Do Not Support Reconsideration of the DIDP Response.

The Requestor suggests that ICANN organization violated the following Commitments and Core Values in the DIDP Response: Article 1, Sections 1.2(a)(i), 1.2(a)(iv), 1.2(a)(vi), 1.2(b)(iv), 1.2(b)(v), 1.2(b)(vi), Article 2, Sections 2.3, 2.9, and Article 3, Section 3.2 of the ICANN Bylaws. (See Request 17-2, § 10, Pgs. 15-16.) However, as the BAMC concluded, and the Board agrees, the Requestor provides no explanation for how these Commitments and Core Values relate to the DIDP Response at issue in Request 17-2 or how ICANN organization might have violated these Commitments and Core Values. (See BAMC Recommendation [PDF, 123 KB], Pg. 26-27.) In fact, many of them, such as ICANN's Core Value of accounting for the public policy advice of governments and public authorities, have no clear relation to the DIDP Response. The Requestor has not established grounds for reconsideration through its list of Commitments and Core Values.

The Board notes that the Requestor states in passing that it has "standing and the right to assert this reconsideration request" as a result of "[f]ailure to consider evidence filed," but does not identify any evidence that it believes ICANN organization failed to consider in responding to the DIDP Request. (Request 17-2 [PDF, 960 KB], § 10, Pg. 13-14.) The Requestor similarly references "[c]onflict of interest issues," "Breach of Fundamental Fairness," and the need for "[p]redictability in the introduction of gTLDs" without explaining how those principles provide grounds for reconsideration here. As such, the BAMC found, and the Board agrees, that the Requestor's claims are unsupported.

The Rebuttal Does Not Raise Arguments or Facts That Support Reconsideration.

The Board has considered the Requestor's Rebuttal and finds that the Requestor has not provided any additional arguments or facts supporting reconsideration.

The Rebuttal suggests that: (1) "neither ICANN nor the BAMC identify or apply the specific Nondisclosure Condition for each category of document" in the Requestor's DIDP Request, "much less to individual documents that have been requested"; (2) ICANN organization misapplied the provision of the DIDP that permits ICANN to disclose information subject to Nondisclosure Conditions if the public interest in disclosure outweighs the harm that may be closed by disclosure; and (3) "[i]n rejecting the DIDP Request, ICANN has closed-off th[e] possibility [of obtaining information about the CPE Process Review] in clear contradiction of its own stated Commitments and Core Values"; and (4) that "ICANN's Board and the BGC remain in ultimate control of any review process initiated by ICANN staff" and therefore DotMusic seeks reconsideration of the "BGC's actions in denying its requests for information." (Rebuttal.)

As noted above, before addressing the Requestor's rebuttal arguments, the Board notes that the Rebuttal is untimely. The Rebuttal was due within 15 days of receipt of the BAMC's Recommendation. (ICANN Bylaws, 22 July 2017, Art. 4, § 4.2(q).) The Requestor received the BAMC's Recommendation on 25 August 2017. The rebuttal was therefore due on 9 September 2017. However, the Requestor did not submit its Rebuttal until 12 September 2017, three days after the deadline. Regardless, for the below reasons, even if the Rebuttal was timely, it does not support reconsideration.

With respect to the first point, the Board has considered Request 17-2, the BAMC's Recommendation, and the Rebuttal, and finds that the BAMC did explain how the Nondisclosure Conditions applied to the documents that ICANN organization determined were not appropriate for disclosure. Consistent with the DIDP Response Process, the BAMC explained that the requested materials contained internal drafts, proprietary, confidential information, and materials that could compromise the integrity of the deliberative and decision-making process with respect to the CPE Process Review. (See BAMC Recommendation [PDF, 123 KB], Pgs. 20-24.)

Second, the Requestor suggests that several of ICANN's Commitments and Core Values required ICANN organization to disclose the requested materials even if certain Nondisclosure Conditions apply. (See Rebuttal [PDF, 259 KB], Pgs. 3-10.) The Requestor suggests that ICANN organization should have concluded that ICANN's commitments to Transparency, Openness, and Accountability to the Internet Community made the public interest in disclosing the information greater than the potential harm in disclosing it. (Id.) The Board finds that the Requestor's position is not supported. The DIDP gives ICANN organization the discretion to decide if, "under the particular circumstances, that the public interest in disclosing the information outweighs the harm that may be caused by such disclosure. Further, ICANN reserves the right to deny disclosure of information under conditions not designated above if ICANN determines that the harm in disclosing the information outweighs the public interest in disclosing the information." (DIDP webpage, https://www.icann.org/resources/pages/didp-2012-02-25-en.)

As explained in the DIDP Response, ICANN organization evaluated the documents that were subject to Nondisclosure Conditions to determine if the public interest (including transparency and fairness concerns) in disclosing them outweighed the harm that may be caused by such disclosure, and concluded that the public interest did not warrant the harm caused by disclosure under these circumstances. (See DIDP Response [PDF, 78 KB], Pg. 6.) The Requestor believes that ICANN should have exercised its discretion differently, but that is not a basis for reconsideration. Further, with respect to transparency, as the Panel in the Amazon v. ICANN Independent Review Process Panel noted earlier this year:

[N]otwithstanding ICANN's transparency commitment, both ICANN's By-Laws and its Publication Practices recognize that there are situations where non-public information, e.g., internal staff communications relevant to the deliberative processes of ICANN . . . may contain information that is appropriately protected against disclosure.
(Amazon EU S.A.R.L. v. ICANN, ICDR Case No. 01-16-000-7056, Procedural Order (7 June 2017), at Pg. 3.)

Third, the Requestor also suggests that ICANN "has closed off th[e] possibility [of obtaining information about the CPE Process Review] in clear contradiction of its own stated Commitments and Core Values." (Rebuttal, Pg. 5.) The Board notes that BGC and ICANN organization have provided several updates concerning the CPE Process Review, including one on 1 September 2017. (https://www.icann.org/news/announcement-2017-09-01-en.) Additionally, and as noted in the 1 September 2017 update, the CPE Process Review is still ongoing. When FTI completes the review, additional information will be made available to the ICANN community, including the Requestor.

Fourth, the Requestor believes that the BGC is ultimately responsible for ICANN organization's DIDP response, and states that it seeks reconsideration of the BGC's supervision of ICANN organization's response to the DIDP Request, and of the BGC's inaction, insofar as the BGC did not cause ICANN organization to disclose the requested documents. (Rebuttal [PDF, 259 KB], Pg. 6.) The Requestor is mistaken. As noted in the DIDP, ICANN organization responds to DIDP requests. Nothing in the DIDP indicates that the BGC is responsible for or otherwise oversees that process. Likewise, nothing in the BGC's Charter indicates that the BGC is responsible for oversight of the DIDP Response Process. (BGC Charter, 25 February 2012, https://www.icann.org/resources/pages/charter-06-2012-02-25-en.) Rather, the DIDP states that the Reconsideration Request process is the proper mechanism for appealing denials of DIDP requests. That process was followed here.

This action is in the public interest as it is important to ensure that ICANN is accountable to the community for operating within the Articles of Incorporation and Bylaws, and other established procedures, by having a process in place for those materially affected by an action of the ICANN Board or Staff may seek reconsideration. Taking this action has no financial impact on ICANN and will not negatively impact the security, stability and resiliency of the domain name system.

This decision is an Organizational Administrative Function not requiring public comment.