Consideration of Reconsideration Request 18-8

Brief Summary and Recommendation

The full factual background is set forth in the BAMC Recommendation on Request 18-8 [PDF, 211 KB] (BAMC Recommendation), which the Board has reviewed and considered, and which is incorporated here.

On 28 August 2018, the BAMC evaluated Request 18-8 and all relevant materials and recommended that the Board deny Request 18-8 because ICANN org adhered to established policies and procedures in the DIDP Response; and ICANN org did not violate its commitments established in the Bylaws concerning transparency and openness.

Pursuant to Article 4, Section 4.2(q), the Requestor has 15 days from the receipt of the BAMC's Recommendation on Request 18-8 to submit a rebuttal. No rebuttal was filed by the 12 September 2018 deadline and none has been received to date.

The Board has carefully considered the BAMC's Recommendation [PDF, 211 KB] and all relevant materials related to Request 18-8, and the Board agrees with the BAMC's Recommendation [PDF, 211 KB].

Issue

The issues are as follows:

Whether ICANN org complied with established ICANN policies in responding to the Second DIDP Request; and
Whether ICANN org complied with its Core Values and commitments established in the Bylaws concerning transparency and openness.
Analysis and Rationale

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

The Response to the DIDP Request Complies with Applicable Policies and Procedures.

The Requestor's DIDP Request sought the disclosure of documents relating to the .WEB/.WEBS contention set. The Board notes that the Requestor does not challenge the applicability of the DIDP Defined Conditions of Nondisclosure (Nondisclosure Conditions) asserted in ICANN org's DIDP Response. Instead, the Requestor claims that ICANN org should have determined that the public interest outweighs the reasons for nondisclosure set forth in the Nondisclosure Conditions.1 The Board finds 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. Nevertheless, the BAMC did review the DIDP Response at issue in Request 18-8 and, for the reasons discussed in the BAMC Recommendation, which are incorporated herein by reference, the BAMC concluded, and the Board agrees, that the DIDP Response complied with applicable policies and procedures, and that reconsideration is not warranted. (See BAMC Recommendation [PDF, 211 KB], Pgs. 15-17.)

The Board agrees with the BAMC's determination that the ICANN org adhered to the "Process For Responding To ICANN's Documentary Information Disclosure Policy (DIDP) Requests" (DIDP Response Process) when it responded to the Requestor's DIDP Request.2 (See BAMC Recommendation [PDF, 211 KB], Pgs. 15-17.) That is, consistent with the DIDP Response Process, ICANN org responded individually to each of the five items requested (and their subparts) by providing links to the publicly available documents responsive to the requests. ICANN org also identified documents responsive to these items and determined that they were subject to the following Nondisclosure Conditions and thus not appropriate for disclosure. Notwithstanding the applicable Nondisclosure Conditions, ICANN org considered whether the public interest in disclosing the information outweighed the harm that may be caused by the disclosure and determined that there are no circumstances for which the public interest in disclosure outweighed that potential harm.3

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.

The BAMC concluded, and the Board agrees, that ICANN org adhered to established policy and procedure in finding that the harm in disclosing the requested that are subject to the Nondisclosure Conditions outweighs the public's interest in disclosing the information.

As noted above, the Requestor does not challenge the applicability of the Nondisclosure Conditions to the responsive documents to the DIDP Request. Instead, the Requestor claims that ICANN org should have concluded that the public interest in disclosing these documents outweighed the harm that may be caused by such disclosure.4 According to the Requestor, "there is a significant public interest in providing for a competitive market in the DNS that outweighs any harm in disclosure, especially given the proposed confidentiality agreement in the [DIDP Request]."5

As an initial matter, the Board agrees with the BAMC's determination that the Requestor's proposal to enter into a confidentiality agreement to protect the information contained in the requested materials does not support reconsideration. Indeed, the concept of a confidentiality agreement for the disclosure of documents through the DIDP runs afoul of the DIDP itself, which is to make public documents concerning ICANN org's operations unless there is a compelling reason for confidentiality.6 Moreover, the Requestor's proposal asks ICANN org to treat the Requestor differently than other requestors, and to act in a manner that is contrary to what is set forth in the DIDP Response Process, which could be in contravention of ICANN's Bylaws. Further, by proposing that the documents be made available only to the Requestor's outside counsel via a "confidentiality agreement," it appears that the Requestor concedes that the requested information is not appropriate for public disclosure.

With respect to the allegations set forth in Request 18-8 regarding Verisign's intentions and conduct in connection with the .WEB gTLD, the Board agrees with the BAMC's conclusion that the Requestor fails to provide any evidence or other support for its assertions. The Board further agrees that the Requestor fails to explain how its unsubstantiated claims concerning Verisign's alleged conduct demonstrate that ICANN org violated a policy or procedure when it responded to the Requestor's DIDP Request.

The Board also agrees with the BAMC's finding that ICANN org did not violate the DIDP Response Process when it determined that the public interest does not outweigh the potential harm in the disclosure of the confidential and privileged documents. ICANN's Bylaws recognize that "[s]ituations may arise in which perfect fidelity to all Core Values simultaneously is not possible. Accordingly, in any situation where one Core Value must be balanced with another, potentially competing Core Value, the result of the balancing must serve a policy developed through the bottom-up multistakeholder process or otherwise best serve ICANN's Mission."7 The DIDP, which was developed through the multistakeholder process with significant community input, specifically permits ICANN org to balance applicable competing Core Values and commitments in any given situation. Here, ICANN org's commitment to promote competition in the DNS is in tension with its commitment to operate with efficiency and excellence, as well as ICANN org's commitment to reasonably balance the interests of different stakeholders, and to support the multistakeholder process. Pursuant to the DIDP, ICANN org may exercise its discretion to withhold materials under these circumstances without violating its commitment to promoting competition, which is what ICANN org did in the DIDP Response. Accordingly, reconsideration is not warranted. (See BAMC Recommendation [PDF, 211 KB], Pgs. 17 – 21.)

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

The Board agrees with the BAMC's determination that the DIDP Response did not violate ICANN org's commitments and Core Values. Neither the DIDP nor ICANN's commitments and Core Values supporting transparency and accountability obligates ICANN org to make public every document in its possession. As noted above, the DIDP sets forth Nondisclosure Conditions for which other commitments or Core Values may compete or conflict with the transparency commitment. These Nondisclosure Conditions represent areas, vetted through public comment, that the community has agreed are presumed not to be appropriate for public disclosure. The public interest balancing test in turn 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.

As the Amazon EU S.A.R.L. Independent Review Process Panel noted in June 2017:

[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.8

As noted above, 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."9

The BAMC concluded, and the Board agrees, that ICANN org set forth the basis for its determination in each instance of nondisclosure in the DIDP Response, which are pre-defined in the DIDP; the Nondisclosure Conditions that ICANN identified, by definition, set forth compelling reasons for not disclosing the materials. (See BAMC Recommendation [PDF, 211 KB], Pgs. 22-23.) It is entirely within ICANN org's discretion to make this finding, and ICANN org may conclude as much without contravening its commitment to transparency. Accordingly, the Requestor's generalized invocations of ICANN org's commitments to transparency and openness do not 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.