Consideration of Reconsideration Request 17-3

Brief Summary

The Requestor submitted a community-based application for .GAY, which was placed in a contention set with other .GAY applications. The Requestor was invited to, and did, participate in CPE, but did not prevail. On 22 October 2015, the Requestor sought reconsideration of the CPE report (Request 15-21). On 1 February 2016, the Board Governance Committee (BGC) denied Request 15-21.5 On 17 February 2016, the Requestor filed another reconsideration request (Request 16-3), seeking reconsideration of the BGC's determination on Request 15-21 concerning the CPE Report.

On 17 September 2016, the ICANN Board directed the President and CEO, or his designee(s), 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 Requests for Reconsideration concerning CPE. The BGC also placed the eight pending reconsideration requests relating to CPE on hold, including Request 16-3, pending completion of the CPE Process Review.

On 18 May 2017, the Requestor submitted a request pursuant to ICANN organization's Documentary Information Disclosure Policy (DIDP) seeking 13 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, 716 KB], attached as Attachment E to the Reference Materials.) On 18 June 2017, ICANN organization responded to the DIDP Request (DIDP Response) and explained that, with the exception of certain documents that were subject to Nondisclosure Conditions, all the remaining documents responsive to eight (Items No. 4-7 and 9-12) of the 13 categories have already been published. (See DIDP Response [PDF, 85 KB], attached as Attachment F to Reference Materials.) The DIDP Response identified and provided hyperlinks to those publicly available responsive documents. (See id.) The DIDP Response further explained that the documents responsive to Items No. 1-3, 8, and 13, and certain documents responsive to Item No. 9, were subject to 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 disclosing the documents. (See id.)

The Requestor claims 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 by determining not to produce certain documents responsive to Items No. 1-3, 8, 9, and 13. (See Request 17-3 [PDF, 507 KB], § 3, Pg. 3, attached as Attachments A & B to Reference Materials.)

The BAMC considered Request 17-3 and all relevant materials and recommended that the Board deny Request 17-3 because it does not set forth a proper basis for reconsideration for the reasons set forth in the BAMC Recommendation on Reconsideration Request 17-3 [PDF, 111 KB] (the BAMC Recommendation), which have been considered and are incorporated here. (See BAMC Recommendation [PDF, 111 KB], attached as Attachment D to Reference Materials.)

On 8 September 2017, the Requestor submitted a rebuttal to the BAMC's Recommendation (Rebuttal), pursuant to Article 4, Section 4.2(1) of ICANN's Bylaws. (See Rebuttal [PDF, 251 KB], attached as Attachment G to Reference Materials.) The Requestor claimed that: (1) "neither ICANN nor the BAMC offer any explanation" for how the Nondisclosure Conditions apply to the documents that ICANN organization determined were not appropriate for disclosure; (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." (Id. at 2.)

Facts

The full factual background is set forth in the BAMC Recommendation [PDF, 111 KB], which the Board has reviewed and considered, and which is incorporated here.

On 23 August 2017, the BAMC recommended that Request 17-3 be denied on the basis that Request 17-3 does not set forth a proper basis for reconsideration for the reasons set forth in the BAMC Recommendation [PDF, 111 KB], which are incorporated here.

On 8 September 2017, the Requestor submitted a rebuttal to the BAMC's Recommendation, pursuant to Article 4, Section 4.2(1) of ICANN's Bylaws, which the Board has also reviewed and considered.

Issues

The issues for reconsideration are6:

Whether ICANN organization complied with established ICANN policies in responding to the DIDP Request.
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:

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 17-3 and all relevant materials, including the BAMC Recommendation. The Board finds the analysis set forth in the BAMC Recommendation [PDF, 111 KB], which is incorporated here, to be sound. The Board has also considered the Requestor's Rebuttal to the BAMC Recommendation. The Board finds that the Rebuttal does not raise arguments or facts that support reconsideration.

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, 111 KB], Pg. 22.) 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 nine of the 13 items. For Items No. 4 through 7 and 9 through 12, ICANN organization determined that most of the responsive documentary information had already been published on ICANN's website. 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 18 publicly available categories of documents that contain information responsive to Items No. 4 through 7 and 9 through 12. (See DIDP Response [PDF, 85 KB], Pg. 4-7.) The DIDP Response also explained that some of the documents responsive to Item No. 9, as well as the documents responsive to Items No. 1-3, 8, and 13, were subject to certain identified Nondisclosure Conditions. 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. at 7.)

The Requestor suggests that reconsideration is warranted because ICANN organization violated ICANN's Core Values and policies established in the DIDP and Bylaws concerning non-discriminatory treatment and transparency by determining not to produce certain documents responsive to Items No. 1-3, 8, 9, and 13. (Request 17-3 [PDF, 507 KB], § 3, Pg. 3.) Additionally, the Requestor suggests that the ICANN organization's determinations as to the applicability of the specified Nondisclosure Conditions warrant reconsideration because "ICANN failed to state compelling reasons for nondisclosure as it pertains to each document request, which it was required to do under its own policy." (Id. at § 6, Pg. 6.)

The BAMC determined, and the Board agrees, that Requestor's position is not supported because ICANN organization did adhere to established policies and procedures in responding to the DIDP Request. (See BAMC Recommendation [PDF, 111 KB], Pgs. 16-22.) The 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 BAMC further concluded, and the Board agrees, that 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 id. at 20-21.)

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), 1.2(a)(v), 1.2(a)(vi) and Article 3, Section 3.1 of the ICANN Bylaws. (See Request 17-3 [PDF, 507 KB], § 6, Pg. 5.) 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 17-3 or how ICANN organization might have violated these Commitments and Core Values. (See BAMC Recommendation [PDF, 111 KB], Pgs. 21-22.) As such, the Requestor has not established grounds for reconsideration through its list of Commitments and Core Values.

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 offer any explanation" for how the Nondisclosure Conditions apply to the documents that ICANN organization determined were not appropriate for disclosure; (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." (Rebuttal [PDF, 251 KB], Pg. 5.)

With respect to the first point, the Board has considered Request 17-3, 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. Specifically, the BAMC explained that the requested materials contained proprietary, confidential information, and materials that had the potential to compromise the integrity of ICANN organization's and FTI's deliberative and decision-making process with respect to the CPE Process Review. (See BAMC Recommendation [PDF, 111 KB], Pgs. 19-21.)

With respect to the Requestor's suggestion that several of ICANN's Commitments and Core Values required ICANN organization to disclose the requested materials even if they were subject to Nondisclosure Conditions, the Board finds that the Requestor's position is not supported. While the Requestor suggests that "ICANN organization did not adhere to its Commitment to openness and transparency when it denied [the Requestor's] request for information", the Requestor provides nothing to support its position. (Rebuttal [PDF, 251 KB], Pg. 4.) The Board notes that 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, 85 KB], Pg. 7.) 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.)

The Requestor also suggests that ICANN organization "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.7

This action is in the public interest as it is important to ensure that, in carrying out its Mission, ICANN is accountable to the community for operating within the Articles of Incorporation, Bylaws, and other established procedures, by having a process in place by which a person or entity materially affected by an action of the ICANN Board or Staff may request reconsideration of that action or inaction by the Board. Adopting the BAMC's Recommendation 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 that does not require public comment.