Consideration of Reconsideration Request 17-4

Brief Summary
The Requestors dotgay LLC (dotgay) and DotMusic Limited (DotMusic) submitted community-based applications for .GAY and .MUSIC, respectively; both applications participated in CPE and neither prevailed. In October 2015, dotgay sought reconsideration of the CPE outcome (Request 15-21),1 which the Board Governance Committee (BGC)2 denied.3 In February 2016, dotgay sought reconsideration of the BGC's denial of Request 15-21 (see Request 16-3).4 In February 2016, DotMusic sought reconsideration of the CPE determination and approval of DotMusic's application (Request 16-5).5

Subsequently, 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 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 placed the eight pending reconsideration requests relating to CPE on hold, including Requests 16-3 and 16-5, pending completion of the CPE Process Review.

On 10 June 2017, the Requestors submitted a Joint DIDP Request seeking documents and information relating to the CPE Process Review, some of which the Requestors had sought in prior DIDP requests. (See Joint DIDP Request, attached as Attachment E to the Reference Materials.) ICANN organization's response (Response to Joint DIDP Request, attached as Attachment F to the Reference Materials) explained that, except for certain documents that were subject to DIDP Defined Conditions for Nondisclosure (Nondisclosure Conditions), all other responsive documents had been published and identified in response to the Requestors' prior DIDP requests.6 (See id.) The Response to Joint DIDP Request provided hyperlinks to the responses to the prior DIDP requests, which in turn identified and provided hyperlinks to publicly available responsive documents. (See id. at Pg. 2.) The Response to Joint DIDP Request further explained that two items (Item Nos. 2 and 4) did not seek documentary information in existence within ICANN. (See id.) Additionally, the Response to Joint DIDP Request explained that ICANN organization evaluated responsive documents subject to Nondisclosure Conditions to determine if the public interest in disclosing them outweighed the harm of 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. at Pg. 3.)

The Requestors then filed Reconsideration Request 17-4 (Request 17-4) challenging the Response to Joint DIDP Request. (See Request 17-4, attached as Attachment A to the Reference Materials.) The Requestors suggest that reconsideration of the Response to Joint DIDP Request is warranted because ICANN organization violated ICANN's Core Values, established DIDP policies and the Bylaws concerning non-discriminatory treatment, transparency, and accountability. (See id. at §8, Pg. 21.)

The BAMC considered Request 17-4 and all relevant materials and recommended that the Board deny Request 17-4 because it does not set forth a proper basis for reconsideration for the reasons set forth in the BAMC Recommendation on Reconsideration Request 17-4 (the BAMC Recommendation), which Recommendation has been considered and is incorporated here. (See BAMC Recommendation [PDF, 273 KB], attached as Attachment D to the Reference Materials.)

On 26 October 2017, the Requestors submitted a rebuttal to the BAMC's Recommendation (Rebuttal), pursuant to Article 4, Section 4.2(q) of ICANN's Bylaws. (See Rebuttal, attached as Attachment G to the Reference Materials.) The Requestors suggest that: (1) Request 17-4 was within the scope of the reconsideration process because "[t]he reconsideration process permits review of an action or inaction—not just the process used to take the action"; (2) "[t]he DIDP relates to ICANN [organization's] Commitments and Core Values, which require transparency"; and (3) ICANN organization violated its commitments to transparency, accountability, and fairness in the Response to Joint DIDP Request. (See id.)

Facts and Recommendation
The full factual background is set forth in the BAMC Recommendation [PDF, 273 KB], which the Board has reviewed and considered, and which is incorporated here.

On 11 October 2017, the BAMC recommended that Request 17-4 be denied on the basis that Request 17-4 does not set forth a proper basis for reconsideration for the reasons set forth in the BAMC Recommendation [PDF, 273 KB], which the Board has considered and which are incorporated here.

On 26 October 2017, the Requestors submitted a rebuttal to the BAMC's Recommendation, pursuant to Article 4, Section 4.2(q) of ICANN organization's Bylaws, which the Board has also considered.

Issues
The issues for reconsideration are7:

Whether ICANN organization complied with established ICANN policies in responding to the Joint DIDP Request.
Whether ICANN organization complied with its Core Values, Mission, and Commitments in responding to the Joint DIDP Request.
The Relevant Standards for Evaluating Reconsideration Requests
Article 4, Sections 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 BAMC'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 17-4 and all relevant materials, including the BAMC Recommendation. The Board finds the analysis set forth in the BAMC Recommendation [PDF, 273 KB], which is incorporated here, to be sound. The Board has also considered the Requestors' 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 Joint DIDP Request.

The BAMC concluded and the Board agrees that the Response to Joint DIDP Request complied with applicable policies and procedures. (BAMC Recommendation [PDF, 273 KB], Pgs. 16-27.) 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 Response to Joint DIDP Request explained that, except for certain documents that were subject to Nondisclosure Conditions, all other responsive documents had been published and identified in response to the Requestors' prior DIDP requests. (See Response to Joint DIDP Request [PDF, 214 KB], Pg. 2.) For Item Nos. 1 and 3, ICANN organization determined that all of the responsive documentary information already had been published on ICANN's website, and provided to the Requestors in response to prior DIDP requests. (See id. at 2.) The DIDP responses to those requests identified and provided the hyperlinks to 21 publicly available documents and websites compiling documents that contain information responsive to Item Nos. 1 and 3. (See id.) The Response to Joint DIDP Request further explained that two Items (Items No. 2 and 4) did not seek documentary information in existence within ICANN. (See id.) Notwithstanding this requirement, ICANN organization provided significant information responsive to Item Nos. 2 and 4 in the Status Update and in an earlier CPE Process Review update, and provided hyperlinks to those updates. (See id. at 2-3.) Additionally, the Response to Joint DIDP Request explained that some of the documents responsive to Item Nos. 2 and 4 were subject to certain identified Nondisclosure Conditions. (See id.) The Response to Joint DIDP Request further explained that ICANN organization evaluated responsive documents subject to 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 3.)

The Requestors suggest that reconsideration is warranted because ICANN organization violated ICANN's Core Values and policies established in the DIDP and Bylaws concerning non-discriminatory treatment, transparency, and accountability in its response to Items No. 1 through 4. (See Request 17-4, § 8, Pg. 21.) Additionally, the Requestors suggest that the ICANN organization's determinations as to the applicability of the specified Nondisclosure Conditions in response to Items No. 2 and 4 warrant reconsideration because it "is in the public's interest to disclose" those documents. (Id. at § 8, Pg. 22.)

The BAMC determined, and the Board agrees, that Requestors' position is not supported because ICANN organization did adhere to established policies and procedures in responding to the DIDP Request. (See BAMC Recommendation [PDF, 273 KB], Pgs. 16-27.) The Requestors do not claim that the Response to Joint DIDP Request is contrary to the DIDP Response Process, nor do the Requestors provide any information to show how ICANN organization's Response to Joint DIDP Request violates ICANN's Mission, Commitments, or Core Values. (See id.) The BAMC further concluded, and the Board agrees, that ICANN organization complied with the DIDP Process in evaluating the responsive documents subject to 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 21-26.) While the Requestors might believe that ICANN organization should have exercised its discretion differently, that is not a basis for reconsideration.

The Requestors' Unsupported References to ICANN Commitments and Core Values Do Not Support Reconsideration of the Response to Joint DIDP Request.

The Requestors suggest that ICANN organization violated the following Commitments and Core Values in the Response to Joint DIDP Request: 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 17-4, § 6, Pgs. 5-7.) However, as the BAMC concluded, and the Board agrees, the Requestors provide no explanation for how these Commitments and Core Values relate to the Response to Joint DIDP Request at issue in Request 17-4 or how ICANN organization might have violated these Commitments and Core Values. (See BAMC Recommendation [PDF, 273 KB], Pgs. 26-27.) As such, the Requestors have 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 Requestors' Rebuttal and finds that the Requestors have not provided any additional arguments or facts supporting reconsideration.

The Rebuttal claims that: (1) Request 17-4 was within the scope of the reconsideration process because "[t]he reconsideration process permits review of an action or inaction—not just the process used to take the action"; (2) "[t]he DIDP relates to ICANN [organization's] Commitments and Core Values, which require transparency"; and (3) ICANN organization violated its commitments to transparency, accountability, and fairness in the Response to Joint DIDP Request. (See Rebuttal.)

With respect to the first claim, the Board has considered Request 17-4 and all relevant materials, the BAMC's Recommendation, and the Rebuttal, and finds that reconsideration is not warranted. The Reconsideration Request process provides a vehicle for requestors to seek reconsideration of ICANN organization's "action or inaction to the extent that the requestor has been adversely affected by … [o]ne of more Board or Staff actions or inactions that contradict ICANN's Mission, Commitments, Core Values, and/or established ICANN policy(ies)." (ICANN Bylaws, Art. 4, Section 4.2(c)(i).) Reconsideration is appropriate if the Requestor demonstrates that the action or inaction contradicts "ICANN's Mission, Commitments, Core Values and/or established ICANN policy(ies)." (Id.; see also, e.g., Board Determination on Request 17-3, https://www.icann.org/resources/board-material/resolutions-2017-09-23-en... Board Determination on Request 17-1, https://www.icann.org/resources/board-material/resolutions-2017-06-24-en....)8 A Reconsideration Request that challenges the outcome of ICANN organization's action or inaction without any supporting evidence beyond the requestor's dissatisfaction with that outcome does not meet the standard for reconsideration. Similarly, a Reconsideration Request that does not explain how the challenged action or inaction contradicted ICANN organization's Mission, Commitments, Core Values, and/or established ICANN policy(ies), without more, cannot justify reconsideration.

The Requestors state that "reconsideration requests provide an opportunity to re-examine an action or inaction." (Rebuttal, Pg. 3.) That is precisely what occurred here. Indeed, notwithstanding the Requestors' failure to demonstrate that ICANN organization's actions or inaction violated its Mission, Commitments, Core Values, and/or established ICANN policy(ies), the BAMC evaluated the Response to Joint DIDP Request to determine if such a violation did occur. The BAMC concluded, and the Board agrees, that ICANN organization's action in the Response was consistent with its Mission, Commitments, Core Values, and established policies. (BAMC Recommendation, Pgs. 16-27.)

Second, the Requestors argue that "ICANN must comply with its Commitments and Core Values during the DIDP," because "[t]he DIDP is clearly related to these Commitments and Core Values." (Rebuttal, Pgs. 4-5.) However, the Response to Joint DIDP Request did comply with ICANN organization's Commitments and Core Values. The DIDP implements ICANN's Commitments and Core Values supporting transparency and accountability by setting forth a procedure through which documents concerning ICANN organization's operations and within ICANN's organization's possession, custody, or control are made available to the public unless there is a compelling reason for confidentiality. (See DIDP, https://www.icann.org/resources/pages/didp-2012-02-25-en) But neither the DIDP nor ICANN organization's Commitments and Core Values supporting transparency and accountability obligates ICANN organization to make public every document in ICANN organization's possession. As the Panel in the Amazon EU S.A.R.L. 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.) ICANN organization's Bylaws address the need to balance competing interests such as transparency and privacy, noting that "in any situation where one Core Value must be balanced with another, potentially competing Core Value, the result of the balancing test must serve a policy developed through the bottom-up multistakeholder process or otherwise best serve ICANN's Mission." (ICANN Bylaws, Art. I, Section 1.2(c).) The DIDP sets forth a test for balancing privacy concerns, such as privilege and protecting the deliberative process, which support ICANN organization's Core Values of operating with efficiency and excellence and "striving to achieve a reasonable balance between the interests of different stakeholders while also avoiding capture", against the Core Value of transparency. (Id. at Sections 1.2(b)(v) and 1.2(b)(vii).) Accordingly, ICANN organization may appropriately exercise its discretion, pursuant to the DIDP, in determining that certain documents are not appropriate for disclosure without contravening its commitment to transparency.

Third, the Requestors claim that the Response to Joint DIDP Request contradicted ICANN's Commitments and Core Values supporting transparency, fairness, and accountability. (Rebuttal, Pgs. 9-10.) The Board finds that these arguments are not supported.

With respect to ICANN's commitment to transparency, the Requestors suggest that ICANN organization should have disclosed all requested documents, or at least "identif[ied] the documents subject to [Nondisclosure] Conditions and explain[ed] how the Nondisclosure Conditions apply." (Id. at Pg. 6.) As discussed above, ICANN organization adhered to established policies and procedures, including ICANN's commitment to transparency, in finding certain of the requested documents subject to DIDP Nondisclosure Conditions. Further, the Board finds that the Response to Joint DIDP Request Process does not require ICANN organization to identify the Nondisclosure Condition applicable to each individual document withheld; indeed, such a requirement could place an undue burden on ICANN. Here, the BAMC sufficiently explained how the Nondisclosure Conditions applied to the documents that ICANN organization determined were not appropriate for disclosure. Specifically, consistent with the Response to Joint DIDP Request Process, the BAMC explained that the requested materials contained internal drafts, materials that could compromise the integrity of the deliberative and decision-making process with respect to the CPE Process Review, and materials subject to the attorney-client or other privileges. (BAMC Recommendation, Pgs. 23-24.) Ultimately, the Requestors have not shown that ICANN organization failed to follow the DIDP or that the Response to Joint DIDP Request contradicted ICANN's Commitments and Core Values supporting transparency, fairness, and accountability.

The Requestors also suggest that ICANN's Commitments and Core Values supporting transparency and fairness required ICANN organization to disclose the requested materials even if certain Nondisclosure Conditions apply, because the CPE Review Process is "significant to Requestors" and others, because "[t]he public is clearly interested" in the requested documents, and because the Requestors suspect "there is little harm in disclosure of [the] documents." (Rebuttal, Pgs. 6-8.) "Public interest" is not determined by whether any entity is "interested" in a matter, but whether an action was in the overall "public interest." Further, the DIDP gives ICANN organization the discretion to decide if, "under the particular circumstances, . . . the public interest in disclosing the information outweighs the harm that may be caused by such disclosure." (DIDP webpage, https://www.icann.org/resources/pages/didp-2012-02-25-en.)

As explained in the Response to Joint DIDP Request, 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 that would be caused by disclosure under these circumstances. (See Response to Joint DIDP Request, Pg. 2-3.) As noted above, the Requestors believe that ICANN organization should have exercised its discretion differently, but that is not a basis for reconsideration because the Requestors have not shown that ICANN organization contravened the DIDP in any way.

The Requestors also suggest that ICANN "has closed-off the possibility of obtaining additional information [about the CPE Process Review] in clear contradiction of its own stated Commitment to and Core Value of transparency. (Rebuttal, Pg. 7.) Similarly, the Requestors suggest that ICANN organization "has restricted . . . access to information regarding the [CPE Process Review] in a blatantly unfair decision that keeps affected uninformed and raises several red flags regarding the integrity of the independent review itself," and that "ICANN has prohibited informed participation in the [CPE Process Review] by the Internet Community." (Id. at Pgs. 9-10.) The Board notes that the 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 the CPE Process Review is complete, additional information will be made available to the ICANN community, including to the Requestors.

This action is within ICANN's Mission and 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.