Consideration of Reconsideration Request 18-1: DotMusic Limited

Brief Summary and Recommendation
The full factual background is set forth in the BAMC Recommendation, which the Board has reviewed and considered, and which is incorporated here.

On 5 June 2018, the BAMC evaluated Request 18-1 and all relevant materials and recommended that the Board deny Request 18-1 because ICANN org adhered to established policies and procedures in its response to the DIDP Request. (See BAMC Recommendation.)

On 20 June 2018, the Requestor submitted a rebuttal to the BAMC's Recommendation (Rebuttal), pursuant to Article 4, Section 4.2(q) of ICANN's Bylaws. (See Rebuttal.) The Requestor claims that the DIDP Response "is clearly improper because (1) ICANN's assertion that the responsive documents fall under [] Nondisclosure Conditions is conclusory and unsupported by any evidence; (2) the public interest outweighs any Nondisclosure Conditions; and (3) ICANN's decision violates its Commitments and Core Values."1

The Board has carefully considered the BAMC's Recommendation and all relevant materials related to Request 18-1, including the Requestor's rebuttal, and the Board agrees with the BAMC's Recommendation and concludes that the Rebuttal provides no additional argument or evidence to support reconsideration.

Issues
The issues for reconsideration are:

Whether ICANN org complied with established ICANN policies in responding to the DIDP Request; and
Whether ICANN org complied with its Core Values, Mission, and Commitments.2
These issues are considered under the relevant standards for reconsideration requests and DIDP requests, which are set forth in the BAMC Recommendation.

Analysis and Rationale
ICANN Org Adhered to Established Policies and Procedures in Responding to the DIDP Request.

The DIDP Response Complies with Applicable Policies and Procedures.

The Requestor's DIDP Request sought the disclosure of documents relating to the CPE Process Review. As noted in the BAMC Recommendation, Request 18-1 focuses on ICANN org's response to Items No. 1-9, 11-15, and 17-19. The DIDP Request sought the disclosure of: (i) emails relating to the CPE process (Items No. 1, 2, 4, 5, and 9); (ii) the CPE Provider's work product (Items No. 6-8, 11, and 12); 3 (iii) FTI's work product in the course of the CPE Process Review (Items No. 3 and 13-15); 4 and (iv) correspondence and documents relating to the CPE Process Review and its scope (Items No. 17-19). 5

The BAMC determined that ICANN org's response was consistent with the DIDP Process, and the Board agrees. That is, ICANN org identified documents responsive to these Items and determined that they were subject to certain applicable Nondisclosure Conditions. (See BAMC Recommendation, Pgs. 13-14.) The BAMC noted, and the Board agrees, that the Requestor does not challenge the applicability of the Nondisclosure Conditions asserted in the DIDP Response. Instead, the Requestor claims that ICANN org should have determined that the public interest outweighs the Nondisclosure Conditions.6 The BAMC found that this argument constitutes a substantive disagreement with ICANN org's discretionary determination, and is not a challenge to the process by which ICANN org reached that conclusion. On that basis alone, the BAMC concluded that reconsideration is not warranted, and the Board agrees.

Further, notwithstanding those Nondisclosure Conditions, the BAMC found that ICANN org did consider whether the public interest in disclosing the information outweighed the harm that may be caused by the disclosure and determined that there were no circumstances for which the public interest in disclosure outweighed that potential harm.7 Accordingly, the BAMC concluded, and the Board agrees, that the DIDP Response complied with applicable policies and procedures. The BAMC further concluded, and the Board agrees, that the Requestor provided no evidence to the contrary, because none exists.

ICANN Org Adhered to Established Policy and Procedure in Finding That the Harm in Disclosing the Requested Documents That Are Subject to Nondisclosure Conditions Outweighs the Public's Interest in Disclosing the Information.

Under the DIDP, information subject to the Nondisclosure Conditions is not appropriate for disclosure unless ICANN org determines that, under the particular circumstances, the public interest in disclosing the information outweighs the harm that may be caused by such disclosure.8 As detailed in the BAMC Recommendation, the BAMC determined, and the Board agrees, that ICANN org undertook such an analysis with respect to each Item requested by the Requestor, and articulated its conclusions in the DIDP Response.

The Requestor disagrees with ICANN org's conclusions. The Requestor claims that the public interest in disclosure outweighs the harm that may be caused by such disclosure because the documents at issue "are given even greater import because . . . the CPE Provider has not agreed [to disclose the documents] and has threatened litigation."9 The BAMC found, and the Board agrees, that the Requestor provides no explanation as to why the CPE Provider's decision not to permit disclosure of the documents renders those materials more important than they otherwise would be or why it justifies disclosure. (BAMC Recommendation, Pg. 26.)

The Requestor also claims that the public interest in disclosure outweighs any purported harm because FTI's conclusions are allegedly "contrary to the findings of other panels and experts"10 and that "[w]ithout the underlying documents," it cannot "analyze whether ICANN unduly influenced the CPE Provider."11 As discussed in detail in the BAMC Recommendation, and incorporated herein by reference, the Requestor's claims do not support reconsideration. The Requestor does not provide any support for this argument. The Board did not direct FTI to come to one conclusion over another. FTI was retained to assess the CPE process and reach its own conclusions. The Requestor has provided no evidence to the contrary.

The BAMC further concluded, and the Board agrees, that there is no merit to the Requestor's argument that "ICANN cannot claim that there is no legitimate public interest in disclosing the requested documents"12 because ICANN org "has not disclosed any 'compelling' reason that outweighs the public interest in disclosure."13 ICANN org did identify compelling reasons in each instance of nondisclosure; the Nondisclosure Conditions that ICANN identified, by definition, set forth compelling reasons for not disclosing the materials.14 There is no policy or procedure requiring ICANN org to provide additional justification for nondisclosure.15 Further, ICANN org did explain why many of the Nondisclosure Conditions applied to the requested items, even though it was not required to do so. Accordingly, reconsideration on this basis is not warranted.

The Requestor further claims that rather than state compelling reasons for nondisclosure, ICANN org "ensured that critical items that could expose both ICANN and the CPE Provider be withheld based on the attorney-client privilege loophole."16 However, as the BAMC concluded, and the Board agrees, the Requestor provides no support—because there is none for this baseless assertion. (BAMC Recommendation, Pg. 23.) The Requestor does not dispute the application of the attorney-client privilege to these documents; the Requestor merely asserts that ICANN org should waive the privilege in light of the DIDP Request.17 No policy or procedure requires ICANN org to waive the attorney-client privilege at a Requestor's request, and the DIDP explicitly recognizes that the attorney-client privilege is a compelling reason for nondisclosure.18

Moreover, the BAMC noted, and the Board agrees, that it is a fundamental principle of law that invocation of the attorney-client privilege is not an admission of wrongdoing or a concession that the protected communication contains negative information concerning the entity invoking the privilege. (BAMC Recommendation, Pg. 24.) The BAMC and the Board therefore reject the Requestor's assertion that the attorney-client privilege is merely a "loophole" that ICANN org sought to take advantage of here, and the Requestor's suggestion that ICANN org's invocation of the privilege indicates that ICANN org had anything to hide.

Finally, the Requestor asserts that the public interest in disclosing the requested documents outweighs the harm that may come from such disclosure because "ICANN reject[ed] participation from all affected applicants and parties in the creation of the CPE Process Review methodology."19 As the BAMC noted, ICANN org did not determine that applicants would not be interviewed or submit materials in the course of the CPE Process Review. (BAMC Recommendation, Pgs. 24-25.) Rather, FTI determined the methodology for its investigation, which it explained in the CPE Process Review Reports. The Requestor has not identified a policy or procedure requiring FTI to conduct interviews after determining that such interviews were unnecessary and inappropriate, nor is there one.20 Accordingly, reconsideration is not warranted on this basis.

ICANN Org Adhered to Its Commitments and Core Values in Responding to the DIDP Request.

ICANN Org Adhered to Its Commitments to Accountability, Openness, and Transparency in Responding to the DIDP Request.

The Requestor asserts that ICANN org's determination that the requested documents are not appropriate for disclosure was inconsistent with its commitments under the Bylaws to "operate to the maximum extent feasible in an open and transparent fashion,"21 "apply[] documented policies consistently, neutrally, objectively, and fairly, without singling out any particular party for discriminatory treatment,"22 and "[r]emain accountable to the Internet community through mechanisms defined in [the] Bylaws that enhance ICANN's effectiveness."23

The DIDP, and particularly the Nondisclosure Conditions, balances ICANN org's commitments to transparency and accountability against other competing commitments and obligations.24 This balancing test allows ICANN org to determine whether or not, under the specific circumstances, its commitment to transparency outweighs its other commitments and core values. Accordingly, without contravening its commitment to transparency, ICANN org may appropriately exercise its discretion, pursuant to the DIDP, to determine that certain documents are not appropriate for disclosure.

ICANN org's Bylaws address this need to balance competing interests such as transparency and confidentiality, 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."25

A critical competing Core Value is ICANN org's Core Value of operating with efficiency and excellence26 by complying with its contractual obligation to the CPE Provider to maintain the confidentiality of the CPE Provider's Confidential Information.27 As part of ICANN's commitment to transparency and information disclosure, when it encounters information that might otherwise be proper for release but is subject to a contractual obligation, if appropriate ICANN org seeks consent from the contractor to release information.28 Here, ICANN org endeavored to obtain consent from the CPE Provider to disclose certain information relating to the CPE Process Review, but the CPE Provider has not agreed to ICANN org's request, and has threatened litigation should ICANN org breach its contractual confidentiality obligations. ICANN org's contractual commitments must be weighed against its other commitments, including transparency. The commitment to transparency does not outweigh all other commitments to require ICANN org to breach its contract with the CPE Provider.

ICANN Org Adhered to Its Commitment to Conform with Relevant Principles of International Law and International Conventions in Responding to the DIDP Request.

The Board finds that the Requestor's argument that "[t]here is an 'international minimum standard of due process as fairness-based on the universal views of all legal systems,'" which is "violated when a decision is based on evidence and argumentation that a party has been unable to address"29 does not support reconsideration.

While ICANN org is committed to conform to relevant principles of international law and conventions,30 constitutional protections do not apply with respect to a corporate accountability mechanism. California non-profit public benefit corporations, such as ICANN org, are expressly authorized to establish internal accountability mechanisms and to define the scope and form of those mechanisms.31 ICANN org was not required to establish a DIDP, but instead did so voluntarily, as part of its commitment to transparency and accountability and with extensive community input. That procedure and those specific commitments are not outweighed by ICANN org's general commitment to conform to relevant principles of international law. Accordingly, the Requestor does not have the "right" to due process or other "constitutional" rights with respect to the DIDP, and the fact that certain Nondisclosure Conditions apply here does not demonstrate that ICANN org violated its commitment to conform to relevant principles of international law.

Likewise, the Board was not obligated to institute the CPE Process Review, but did so in its discretion pursuant to its best judgment, after considering all the relevant issues. Accordingly, the Board was not obligated to direct ICANN org to undertake the CPE Process Review at all, let alone to set a particularly wide or narrow scope for it, or for the disclosure of supporting materials to the Requestor.32

The Requestor's conclusory statement that it has been deprived of due process because it did not have access to every document underlying the CPE Process Review Reports does not support reconsideration. The Requestor has no basis for this assertion, as the BAMC has not yet issued a recommendation on Request 16-5.

Ultimately, the Requestor has not identified any element of ICANN's Mission, Commitments, Core Values, or established ICANN policy(ies) violated by ICANN org's correspondence with the Requestor, as none were violated. Accordingly, reconsideration is not warranted.

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

The Board has carefully considered the Requestor's Rebuttal and finds that the Requestor has not provided any additional arguments or facts supporting reconsideration. The Rebuttal claims that the DIDP Response "is clearly improper because (1) ICANN's assertion that the responsive documents fall under [] Nondisclosure Conditions is conclusory and unsupported by any evidence; (2) the public interest outweighs any Nondisclosure Conditions; and (3) ICANN's decision violates its Commitments and Core Values."33 These are the same arguments set forth in the Request 18-1 and which were addressed by the BAMC in its Recommendation.

With respect to the first claim, the Requestor now asserts that "neither ICANN nor the BAMC provide any analysis on whether each requested document is covered by a Nondisclosure Condition."34 The Board notes that the Requestor does not dispute the BAMC's finding that "the Requestor does not challenge the applicability of the Nondisclosure Conditions asserted in the DIDP Response."35 Nor does the Requestor identify a policy or procedure requiring ICANN org or the BAMC to provide an "analysis" or other explanation for nondisclosure, because there is none. The Nondisclosure Conditions speak for themselves and each condition provides the explanation for why disclosure is not appropriate. Further, as noted in the BAMC's Recommendation, contrary to the Requestor's assertion, ICANN org did explain why many of the Nondisclosure Conditions applied to the requested items, even though it was not required to do so. Accordingly, reconsideration on this basis is not warranted.

Second, the Requestor repeats its argument that "the public interest outweighs any Nondisclosure Conditions" because the CPE Process Review "not only affects all of the community gTLD applicants but also the entire Internet community, which will benefit from certain community gTLDs, such as .MUSIC."36 While the Requestor believes that ICANN org should have exercised its discretion differently, that is not a basis for reconsideration because the Requestor has not shown that ICANN org contravened the DIDP in any way. Accordingly, the Board finds that this argument was sufficiently considered and addressed in the BAMC Recommendation and the Board adopts the BAMC's Recommendation that reconsideration is not warranted.37 The Requestor also suggests that ICANN org has "restricted [] access to information regarding the independent review in blatantly unfair decisions that keep affected applicants uninformed and endangers the integrity of the independent review itself."38 The Board notes that the BGC and ICANN org have provided several updates concerning the CPE Process Review, including updates on 2 June 2017,39 1 September 2017,40 and 13 December 201741. In addition, ICANN org published three reports on the CPE Process Review, which detailed the methodology and conclusions reached by FTI.42 The suggestion that applicants are "uninformed" about the CPE Process Review is not only unsupported but also irrelevant to the DIDP Response.

Third, the Requestor repeats its argument that "ICANN must comply with its Commitments and Core Values, even when issuing the DIDP Response, or ICANN will violate its own Bylaws."43 The BAMC addressed this argument and found that the DIDP Response did comply with ICANN org's Commitments and Core Values. As the BAMC concluded, and the Board agrees, neither the DIDP nor ICANN org's Core Value of transparency obligates ICANN org to make public every document in ICANN org's possession.44

Fourth, the Requestor again asserts that that the DIDP Response contradicted ICANN's Commitments to fairness and accountability, which required ICANN org to disclose the requested materials even if certain Nondisclosure Conditions apply, because the CPE Process Review "is significant not only to Requestor but also to other gTLD applicants."45 The Board finds that this argument is not supported. The "public interest" is not determined by whether any entity deems the matter to be "significant." Instead, "public interest" refers to the benefit or well-being of the general public. As explained in the BAMC Recommendation, consistent with the DIDP, ICANN org exercised its discretion in finding that the harm in disclosing the requested information – some of which comprised privileged materials and other documents which were subject to contractual confidentiality obligations – outweighed the public interest in disclosing the information.

Nor is there support for the Requestor's claim that "ICANN's refusal to disclose certain documents regarding the independent review lets it avoid accountability to the Internet community . . . ."46 As explained in the BAMC Recommendation, without contravening its commitment to transparency and accountability, ICANN org may appropriately exercise its discretion, pursuant to the DIDP, to determine that certain documents are not appropriate for disclosure.

Further, the Requestor's assertion that "the CPE Provider may be seeking to intentionally obscure the defects in its review, perhaps aided and abetted by ICANN staff"47 is baseless and does not support the Requestor's claim that ICANN org violated its Commitment to fairness. As support, the Requestor cites to the fact that the CPE Provider refused to produce certain categories of documents to FTI. The CPE Provider claimed that, pursuant to its contract with ICANN org, it was only required to produce CPE working papers, and that internal and external emails were not "working papers."48 This is no evidence of obfuscation by the CPE Provider, nor is it evidence of any complicit action by ICANN org. The CPE Provider asserted its position with respect to its contractual obligations under the parties' Statement of Work; no policy or procedure required ICANN org to litigate that issue. Further, the CPE Provider did produce to FTI, and FTI did review, the CPE Provider's working papers, draft reports, notes, and spreadsheets for all CPE Reports. The CPE Provider also made its staff available for interviews by FTI; ICANN org did the same. FTI also received and reviewed emails (and attachments) produced by ICANN org between relevant CPE Provider personnel and relevant ICANN org personnel related to the CPE process and evaluations. Accordingly, there is no support for the Requestor's assertion that the CPE Provider or ICANN org attempted to "obscure" any facts pertinent to CPE.

Finally, the Requestor repeats its claim that "[t]he ICANN Bylaws thus require that ICANN comply with principles of international law, which includes due process."49 However, as explained in the BAMC Recommendation, the Requestor has not demonstrated how the DIDP Response violates this commitment.

Moreover, the Requestor does not have the "right" to due process with respect to the DIDP. Indeed, the Requestor does not cite any persuasive authority supporting its position that such due process rights exist here. To the contrary, all the Requestor cites is an excerpt from Competing for the Internet: ICANN Gate – An Analysis and Plea for Judicial Review through Arbitration (2017), which was authored by two attorneys representing other gTLD community applicants in connection with the pending reconsideration requests relating to the CPE process and which raise similar issues to those asserted by the Requestor here. The excerpt cited simply posits the authors' unsupported opinion that principles of international law should be placed first before local law and ICANN's Bylaws.50 Indeed, the book even states that it offers only the "recommendations" of the authors, which are "no doubt colored by their perspectives; after all, the authors have been involved in many of the leading IRP proceedings and have counseled innumerable applicants on their right in the domain name system and the new gTLD application process."51 These "recommendations" are not definitive of international law principles, nor do they support reconsideration.

Accordingly, the Board concludes that nothing in the Requestor's Rebuttal warrants reconsideration.

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.