Consideration of Reconsideration Request 18-2: dotgay LLC

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 18-2 and all relevant materials and recommended that the Board deny Request 18-2 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 Request 18-2 "is properly within the scope of the reconsideration process, ICANN must recognize and apply international principles, and that both the DIDP Response and [BAMC] Recommendation violate ICANN's commitments and core values."52

The Board has carefully considered the BAMC's Recommendation and all relevant materials related to Request 18-2, 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 particularly with respect to Item Nos. 1-9, 12-16, and 18-21; and
Whether ICANN org complied with its Core Values, Mission, and Commitments.53
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 Community Priority Evaluation (CPE) process review (CPE Process Review). As noted in the BAMC Recommendation, Request 18-2 focuses on ICANN org's response to Items No. 1-9, 12-16, and 18-21. 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, 12, and 13); (iii) FTI's work product in the course of the CPE Process Review (Items No. 3 and 14-16); and (iv) correspondence and documents relating to the CPE Process Review and its scope (Items No. 18-21).54 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. 14-21.) 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 is "hiding behind" those Nondisclosure Conditions and, in the Requestor's view, ICANN org should have determined that the public interest outweighs the reasons for nondisclosure set forth in the Nondisclosure Conditions.55 The BAMC found, and the Board agrees, that this represents a substantive disagreement with ICANN org's discretionary determination, and not a challenge to the process by which ICANN org reached that conclusion. On that basis alone, reconsideration is not warranted. (BAMC Recommendation, Pg. 12.)

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.56 As detailed in the its 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. (BAMC Recommendation, Pgs. 24-27.)

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. 57 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. 24.)

The BAMC also found, and the Board agrees, that the Requestor's claims that the public interest in disclosure outweighs any purported harm because "there are clear problems and contradictions contained within the reports,"58 and that it cannot "analyze whether ICANN unduly influenced the [CPE Provider] without the underlying documents"59 do not support reconsideration. 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 to support its claims.

The BAMC further concluded, and the Board agrees, that there is no merit to the Requestor's claim that ICANN org "failed to state compelling reasons for nondisclosure as it pertains to each document request, which it was required to do under its own policy."60 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.61 There is no policy or procedure requiring that ICANN org to provide additional justification for nondisclosure.62 Further, ICANN org explained 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."63 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. 25.) 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.64 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.65

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. 26.) 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 its 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." 66 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. 26.) 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. 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 manner,"67 "apply[] documented policies consistently, neutrally, objectively, and fairly, without singling out any particular party for discriminatory treatment,"68 and "[r]emain accountable to the Internet community through mechanisms defined in [the] Bylaws that enhance ICANN's effectiveness." 69 The BAMC concluded, and the Board agrees, that this assertion does not support reconsideration.

The DIDP, and particularly the Nondisclosure Conditions, balance ICANN org's commitments to transparency and accountability against its competing commitments and obligations.70 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."71

A critical competing Core Value is ICANN org's Core Value of operating with efficiency and excellence72 by complying with its contractual obligation to the CPE Provider to maintain the confidentiality of the CPE Provider's Confidential Information. 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.73 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 the Requestor's argument that the CPE Process Review did not provide due process to the Requestor because "it has been unable to address the evidence supporting the FTI Reports because they have not been made publically available"74 does not support reconsideration. The Requestor claims that "[p]ursuant to [international] laws and conventions, there 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.'"75

As discussed in the BAMC Recommendation, and incorporated herein by reference, while ICANN org is committed to conform to relevant principles of international law and conventions,76 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.77 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.

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.78

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 16-3.

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

The Requestor claims that Request 18-2 "is properly within the scope of the reconsideration process, ICANN must recognize and apply international principles, and that both the DIDP Response and [BAMC] Recommendation violate ICANN's commitments and core values."79 These are the same arguments set forth in Request 18-2 and which were addressed by the BAMC in its Recommendation.

With respect to the first claim, the Requestor asserts that ICANN's Bylaws "do not limit reconsideration requests to contesting 'the process by which ICANN reached that decision.'"80 According to the Requestor, the Reconsideration Request process instead provides a vehicle for requestors to seek reconsideration of ICANN organization "actions or inactions that contradict ICANN's Mission, Commitments, Core Values, and/or established ICANN policy(ies) and adversely affect the requestor."81 The Requestor is correct that reconsideration may be appropriate if the Requestor demonstrates that the action or inaction contradicts "ICANN's Mission, Commitments, Core Values and/or established ICANN policy(ies)."82 However, a Reconsideration Request that challenges the outcome of ICANN org'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 org's Mission, Commitments, Core Values, and/or established ICANN policy(ies), without more, cannot justify reconsideration; if it did, the Board would be compelled to grant reconsideration to every requestor that sought it, which would render the process meaningless.

Second, the Requestor repeats its argument that "[t]he DIDP Response violates the principle of transparency."83 The Board finds that this argument has been sufficiently addressed by the BAMC and that the Rebuttal provides no new fact or evidence to support reconsideration. (BAMC Recommendation, Pgs. 27-31.)

Similarly, with respect to the Requestor's argument that the requested documents should be disclosed because the "public is specifically interested" in the CPE Process Review"84 was sufficiently considered and addressed in the BAMC Recommendation and the Board adopts the BAMC's Recommendation that reconsideration is not warranted.85 While the Requestor believes that ICANN org should have exercised its discretion differently, that is not a basis for reconsideration because the Requestor has provided any new facts or evidence on rebuttal warranting reconsideration.

Nor is there support for the Requestor's suggestion that there was only a "single harm" – namely the "[w]eakening [of] the attorney-client privilege – that ICANN org considered when it determined that the public interest did not warrant the harm that would be caused by disclosure under the circumstances.86 This claim has already addressed by the BAMC and the Requestor provides no additional evidence or facts that would support reconsideration. The Requestor's other arguments concerning the application of the attorney-client privilege confirm that no policy or procedure exists that would require ICANN org to waive the privilege just because the Requestor asks it to do so. (Rebuttal, Pg. 7).

Fourth, the Requestor asserts that ICANN org has "restricted interested parties' access to information in a blatantly unfair decision that keeps affected applicants uninformed and raised several read flags regarding the integrity of the independent review itself."87 The Board notes that the Board Governance Committee and ICANN org have provided several updates concerning the CPE Process Review, including updates on 2 June 2017,88 1 September 2017,89 and 13 December 201790. In addition, ICANN org published three reports on the CPE Process Review, which detailed the methodology and conclusions reached by FTI.91 The suggestion that applicants are "uninformed" about the CPE Process Review is not only unsupported but also irrelevant to the DIDP Response.

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 . . . ."92 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.

Finally, the Requestor repeats its claim that "[t]he ICANN Bylaws require that ICANN comply with principles of international law, which includes due process."93 However, 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 at least 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.94 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."95 These "recommendations" are not definitive of international law principles, nor do they support 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.