[Ws2-ombudsman] AI#2 from Call IOO-DT #14 - FW: [Ext] FW: Transparency & Ombudsmen Groups

Thu Jan 19 09:25:03 UTC 2017

Dear Colleagues,
Please find attached the exchanges between Michael Karanicolas (reporter
of the Transparency DT and member of our group - IOO) and Herb Waye (ICANN
Ombuds and member of our IOO group).
I miss the fact that it was already send to the Transparency Group.
Sorry.
Please read this interesting exchange and if you have any comments please
send them to the list.
It will be one of the topic for our next meeting.
And I will liaise with Michael and the CCWG co-chairs in the next few days.

Thanks
All the best
SeB

Sébastien Bachollet
+33 6 07 66 89 33
Blog: http://sebastien.bachollet.fr/
Mail: Sébastien Bachollet <sebastien at bachollet.com>

Le 17/01/2017 21:36, « Michael Karanicolas » <mkaranicolas at gmail.com on
behalf of michael at law-democracy.org> a écrit :

>Hi,
>
>Sure - I think that we're anticipating substantial feedback from ICANN
>staff during the public comment period - there are several areas where
>I'm sure they're going to want to weigh in, including here.
>
>I think it's fine to keep the Ombudsman's review "post-decision", as
>you suggest. So instead of requiring "approval", we'll require a
>"review".
>
>Unless there are any objections, that seems like a good avenue forward to
>me.
>
>Thanks again for your engagement here,
>
>Michael
>
>On Tue, Jan 17, 2017 at 4:21 PM, Herb Waye <herb.waye at icann.org> wrote:
>> Hi Michael and allŠ
>>
>>
>>
>> Of course you would need to talk to Göran if you wish to consider the
>> complaints officer for the role as he/she would report through Legal to
>> Göran.
>>
>>
>>
>> The Complaints Officer could be involved in the initial decision
>>regarding a
>> vexatious/frivolous refusal, but if the Ombudsman takes on the role I
>>would
>> highly suggest keeping the review post-decision to avoid conflict with a
>> potential or ongoing ombudsman investigation.
>>
>>
>>
>> Regards Herb
>>
>>
>>
>> Herb Waye
>>
>> ICANN Ombudsman
>>
>>
>>
>> https://www.icann.org/ombudsman
>>
>> https://www.facebook.com/ICANNOmbudsman
>>
>> Twitter: @IcannOmbudsman
>>
>>
>>
>> ICANN Expected Standards of Behavior:
>>
>> 
>>https://www.icann.org/sites/default/files/assets/expected-standards-22aug
>>16-en.pdf
>>
>>
>>
>> Confidentiality
>>
>> All matters brought before the Ombudsman shall be treated as
>>confidential.
>> The Ombudsman shall also take all reasonable steps necessary to
>>preserve the
>> privacy of, and to avoid harm to, those parties not involved in the
>> complaint being investigated by the Ombudsman.The Ombudsman shall only
>>make
>> inquiries about, or advise staff or Board members of the existence and
>> identity of, a complainant in order to further the resolution of the
>> complaint.  The Ombudsman shall take all reasonable steps necessary to
>> ensure that if staff and Board members are made aware of the existence
>>and
>> identity of a complainant, they agree to maintain the confidential
>>nature of
>> such information, except as necessary to further the resolution of a
>> complaint
>>
>>
>>
>>
>>
>>
>>
>> From: <mkaranicolas at gmail.com> on behalf of Michael Karanicolas
>> <michael at law-democracy.org>
>> Date: Tuesday, January 17, 2017 at 2:24 PM
>>
>>
>> To: Herb Waye <herb.waye at icann.org>
>> Cc: "sebastien at bachollet.com" <sebastien at bachollet.com>,
>>"cwilson at 21cf.com"
>> <cwilson at 21cf.com>, "ws2-transparency at icann.org"
>> <ws2-transparency at icann.org>
>> Subject: Re: [Ext] FW: Transparency & Ombudsmen Groups
>>
>>
>>
>> Hi,
>>
>> Thanks for those additional thoughts. It really is, I think, invaluable
>>to
>> have you engaged in this discussion.
>>
>> I see that, for both the review of vexatious or frivolous refusals and
>>the
>> monitoring and evaluation role, you're suggesting these be given to the
>>new
>> Complaints Officer. I don't think that's a bad idea per say, but I am a
>>bit
>> concerned about taking that position while their role is still being
>> finalised including, I assume, continuing discussions about how their
>>role
>> will interact with yours. I don't know that that's a process we should
>> necessarily be jumping into when, for us I think, the bottom line is
>>that
>> these functions should be carried out, and done so by an effective and
>> independent body.
>>
>> As a solution, I would suggest that, for both the review of
>> vexatious/frivolous refusals and the monitoring and evaluation role, we
>> amend the recommendations to say that these functions should be carried
>>out
>> by either the Ombudsman or the Complaints Officer, to allow for a bit
>>more
>> flexibility as that latter role develops, and to insure we're not
>>proposing
>> anything at odds with the broader vision for that office.
>>
>>
>>
>> Does that sound like an acceptable solution?
>>
>>
>>
>> Best,
>>
>>
>>
>> Michael
>>
>>
>>
>> On Mon, Jan 16, 2017 at 1:10 PM, Herb Waye <herb.waye at icann.org> wrote:
>>
>> Hi Michael and everyone else,
>>
>>
>>
>> I guess what I don¹t want to happen is to have the Ombudsman given
>>powers to
>> make a ruling as part of another department¹s process and then have the
>> issue come back to the Office for investigation. If someone files a DIDP
>> request, and the Ombudsman agrees it is vexatious or frivolous, and it
>>gets
>> refused, who can the complainant then turn to? To prevent unfairness,
>>the
>> Ombudsman would be required to conduct a full investigation before
>>coming to
>> a conclusion and should only be able to recommend DIDP refusal or
>>acceptance
>> after the investigation has been concluded. Could a possible solution
>>be to
>> have the new Complaints Officer participate in this process? If you are
>> merely looking for an independent person to participate in a frivolous
>>or
>> vexatious DIDP refusal, that might be a solution. This would leave the
>> Ombudsman completely independent and impartial to subsequently
>>investigate a
>> DIDP request refusal, and eliminate the possibility of having to
>>recommend
>> the reversal of one of his/her own decisions.
>>
>>
>>
>> As the situation presently stands, DIDP requests can and do come to the
>> Office for investigation, for various reasons. I see no reason why we
>> couldn¹t possibly turn your idea around just a bit and state, for
>>example,
>> that any DIDP request that is refused as vexatious or frivolous, the
>> requestor has the option of requesting a review of the decision by the
>> Ombudsman. This puts the Ombudsman at the end of the process, but with
>>the
>> same role of review, and eliminates any perceived or actual conflict of
>> interest by having the Ombudsman partake in the original decision
>>process.
>> This would also allow a conversation to take place between the
>>requestor and
>> the Ombudsman should confidentiality be at stake if the DIDP request is
>> related to an issue already under investigation by the Ombudsman. And
>> moreover, give the Ombudsman the option of conducting a full
>>investigation
>> if he/she chooses, at the request of the complainant rather than a
>>forced
>> investigation as part of a process.
>>
>>
>>
>> Furthermore, and I can¹t properly discuss this issue without a legal
>> opinion, the Ombudsman has the power to compel ICANN to produce
>>documents as
>> part of an investigation. I would need to speak to ICANN legal or
>> independent council to determine whether participation in the DIDP
>>process
>> could potentially conflict with this power to compel.
>>
>>
>>
>> As for publication of statistics, I see this as a potential role for the
>> ICANN Complaints Officer. He/she will already be part of the performance
>> process for ICANN staff and its departments. I see it as a logical
>>extension
>> to be the person to report on their performance, including DIDP. The
>> Ombudsman definitely has a role as Champion for transparency, behavior,
>>due
>> process, fairness, etc. This is one area I would hope the Ombudsman and
>>the
>> Complaints Officer would have a conjoined role of promoting many of the
>> issues being discussed by the CCWG Accountability teams.
>>
>>
>>
>> I look forward to hearing any other thoughts on the involvement of the
>> Office of the Ombudsman in the DIDP or any other process for that
>>matter.
>>
>>
>>
>> Best regards Herb
>>
>>
>>
>>
>>
>> Herb Waye
>>
>> ICANN Ombudsman
>>
>>
>>
>>
>>
>>
>>
>> From: <mkaranicolas at gmail.com> on behalf of Michael Karanicolas
>> <michael at law-democracy.org>
>> Date: Friday, January 13, 2017 at 4:08 PM
>> To: Herb Waye <herb.waye at icann.org>
>> Cc: "sebastien at bachollet.com" <sebastien at bachollet.com>,
>>"cwilson at 21cf.com"
>> <cwilson at 21cf.com>, "ws2-transparency at icann.org"
>> <ws2-transparency at icann.org>
>> Subject: Re: [Ext] FW: Transparency & Ombudsmen Groups
>>
>>
>>
>> Hi,
>>
>>
>>
>> Thanks very much for this thoughtful response. I'm copying in the
>> transparency subgroup, for the sake of... well... transparency.
>>
>>
>>
>> Fully understand your concern about maintaining the confidentiality of
>> complainants - but I'm not sure I follow how the examples you mention
>>would
>> undermine that. Can I ask you to please clarify your thinking on this?
>>
>>
>>
>> With regards to the appeals mechanism for your decisions regarding
>>frivolous
>> and vexatious requests - I would suggest that the way to see the
>>requirement
>> for your office to approve dismissing requests for being vexatious is
>>that
>> your review is already the appeal against a staff decision that the
>>request
>> should be dismissed. So an initial decision that a request is vexatious
>>is
>> made by the receiving staff, but because of the potential for abuse in
>>this
>> exception, it's automatically reviewed by the Ombudsman for approval. In
>> terms of where the appeals from your decisions go - I guess it would be
>>no
>> different than any other ruling or decision your office makes.
>>
>>
>>
>> In terms of publishing statistics - I don't think that ICANN currently
>>has
>> any single "department" dealing with this, which I think is part of the
>> problem. I think that the rationale for including this among the
>>Ombudsman's
>> role is to allow your office to play an M&E role, keeping an eye on
>>areas
>> that need improvement, in what I think would also be parallel with the
>> Expected Standards of Behaviour. However, if you don't think that's an
>> appropriate responsibility for you, do you have any suggestions as to
>>where
>> this kind of M&E would be best handled?
>>
>>
>>
>> Regarding promoting the DIDP vs promoting transparency - I fully agree.
>> Unless there are any objections among the group I'd be happy to rephrase
>> that. Of course, you're absolutely right that the DIDP is an important
>> aspect of transparency, but there's more to transparency than just that.
>>
>>
>>
>> Best wishes,
>>
>>
>>
>> Michael
>>
>>
>>
>>
>>
>> On Thu, Jan 12, 2017 at 12:50 PM, Herb Waye <herb.waye at icann.org> wrote:
>>
>> Hello Michael,
>>
>>
>>
>> Sébastien asked that I reach out to you to discuss the potential role
>>of the
>> Ombuds in the two recommendations you identify in your email.
>>
>>
>>
>> My biggest concern with any expansion of the role of the Ombuds is to
>> protect the confidentiality of the Office. Moving forward with your
>>working
>> group it is important to consider any situation that might corrupt the
>> confidentiality of the interactions between the Ombuds and a client.
>>
>>
>>
>> As an example, the new ICANN bylaws expand the role of the Ombuds into
>>the
>> Reconsideration process. The bylaws indicate that if the case before the
>> Reconsideration committee is being (or has been) investigated by the
>>Ombuds
>> then the Ombuds can recuse from the reconsideration process but by
>>doing so
>> he/she reveals an ongoing (or past) investigation, effectively breaching
>> confidentiality. Conversely if the Reconsideration request is rejected
>>and
>> the Ombuds was part of the evaluation for rejection, then who can the
>> requestor turn to afterwards if the Ombuds has already been part of the
>> process. Clearly this was not foreseen by the community nor by the
>>bylaws
>> committee.
>>
>>
>>
>> Any expansion of the role of the Ombuds must also take into
>>consideration
>> potential conflict of interest and with the DIDP role one could easily
>> question who the complainant could go to for recourse if the Ombuds
>>ruled
>> publicly that something was vexatious etc. without conducting a full
>> investigation into the matter? I am quite interested and excited about
>>any
>> potential expansion of the role of the Ombuds but with prudence as the
>> pillars of the Office must be considered and protected: Independent,
>> Impartial, Confidential, Neutral, Informal, and Unbiased.
>>
>>
>>
>> The second recommendation appears administrative and I see no reason
>>why it
>> should fall under the Office of the Ombudsman to publish statistics from
>> another department. I am very supportive of the Ombuds taking on a
>> promotional role regarding transparency, much as I have with the
>>Expected
>> Standards of Behavior, but I don¹t think it needs to be specifically
>>focused
>> more on DIDP than any other aspect of ICANN business that should be more
>> transparent.
>>
>>
>>
>> I look forward to discussing this further in any way that can assist
>>your
>> working group.
>>
>>
>>
>> Best regards Herb
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>> Herb Waye
>>
>> ICANN Ombudsman
>>
>>
>>
>> https://www.icann.org/ombudsman[icann.org]
>>
>> https://www.facebook.com/ICANNOmbudsman[facebook.com]
>>
>> Twitter: @IcannOmbudsman
>>
>>
>>
>> ICANN Expected Standards of Behavior:
>>
>> 
>>https://www.icann.org/sites/default/files/assets/expected-standards-22aug
>>16-en.pdf[icann.org]
>>
>>
>>
>> Confidentiality
>>
>> All matters brought before the Ombudsman shall be treated as
>>confidential.
>> The Ombudsman shall also take all reasonable steps necessary to
>>preserve the
>> privacy of, and to avoid harm to, those parties not involved in the
>> complaint being investigated by the Ombudsman.The Ombudsman shall only
>>make
>> inquiries about, or advise staff or Board members of the existence and
>> identity of, a complainant in order to further the resolution of the
>> complaint.  The Ombudsman shall take all reasonable steps necessary to
>> ensure that if staff and Board members are made aware of the existence
>>and
>> identity of a complainant, they agree to maintain the confidential
>>nature of
>> such information, except as necessary to further the resolution of a
>> complaint
>>
>>
>>
>>
>>
>>
>>
>> From: Sébastien Bachollet <sebastien at bachollet.com>
>> Date: Wednesday, January 11, 2017 at 5:12 PM
>> To: Herb Waye <herb.waye at icann.org>
>> Subject: [Ext] FW: Transparency & Ombudsmen Groups
>>
>>
>>
>> Pour info
>>
>> Sébastien Bachollet
>>
>> +33 6 07 66 89 33
>>
>> Blog: http://sebastien.bachollet.fr[sebastien.bachollet.fr]/
>>
>> Mail: Sébastien Bachollet <sebastien at bachollet.com>
>>
>>
>>
>> De : <mkaranicolas at gmail.com> on behalf of Michael Karanicolas
>> <michael at law-democracy.org>
>> Date : mercredi 11 janvier 2017 à 22:15
>> À : Sébastien Bachollet <sebastien at bachollet.com>
>> Cc : "Wilson, Christopher" <cwilson at 21cf.com>
>> Objet : Transparency & Ombudsmen Groups
>>
>>
>>
>> Hi Sebastien,
>>
>> Please speaking with you just now. Regarding the point about ensuring
>>there
>> are no contradictions between the different subgroups, I am pasting the
>> parts of the document which deal with the Ombudsman below - just two
>> recommendations.
>>
>>
>>
>> I'm open to taking this forward either via email or by Skype, if you
>>prefer,
>> to get us onto the same page, and ensure that there's no conflict
>>between
>> the subgroups, and that we're not proposing anything that will go
>>against
>> what your group has in mind.
>>
>> Best,
>>
>> Michael
>>
>>
>> The exception for information requests which are ³not reasonable,
>>excessive
>> or overly burdensome, not feasible, abusive or vexatious or made by a
>> vexatious or querulous individual² also requires careful consideration.
>> While exceptions for vexatious requesters are generally legitimate,
>> experience suggests that they are also prone to abuse if their exercise
>>is
>> not closely watched. As a result, and because it is difficult to
>>objectively
>> define when a request should be considered abusive or vexatious, we
>> recommend that the consent of the Ombudsman should be required in order
>>to
>> invoke this exception.
>>
>> Recommendation: The exception for information requests which are ³not
>> reasonable, excessive or overly burdensome, not feasible, abusive or
>> vexatious or made by a vexatious or querulous individual² should be
>>amended
>> to require the consent of the Ombudsman before it is invoked.
>>
>> A further recommendation is that the Ombudsman¹s mandate regarding the
>>DIDP
>> should be boosted to grant the office a stronger promotional role,
>>including
>> specific steps to raise public awareness about the DIDP and how it
>>works,
>> including by integrating understanding of transparency and the DIDP into
>> ICANN¹s broader outreach efforts. Another way to facilitate requests is
>>to
>> make it clear to external stakeholders what sort of information ICANN
>>holds,
>> to better facilitate filing targeted and clear DIDP requests. This can
>>be
>> done, for example, by publishing a list of the categories of
>>information it
>> holds and whether they are disclosed on a proactive basis, may be
>>available
>> via a request or are confidential.
>>
>> Monitoring and evaluation are also essential to a successful right to
>> information policy, and the Ombudsman should be tasked with carrying out
>> reasonable measures to track and report basic statistics on the DIDP¹s
>>use,
>> such as the number of requests received, the proportion which were
>>denied,
>> in whole or in part, the average time taken to respond, and so on.
>>
>> Recommendation: The Ombudsman¹s mandate regarding the DIDP should also
>>be
>> boosted to grant the office a stronger promotional role, including by
>> integrating understanding of transparency and the DIDP into ICANN¹s
>>broader
>> outreach efforts, by publishing a list of the categories of information
>> ICANN holds and by reasonable monitoring and evaluation procedures,
>>such as
>> publishing the number of requests received, the proportion which were
>> denied, in whole or in part, the average time taken to respond, and so
>>on.
>>
>>
>>
>>