[CCWG-ACCT] Further Board feedback on Inspection rights

Chris LaHatte chris.lahatte at icann.org
Thu Jan 14 21:04:06 UTC 2016

It is worth noting my powers to inspect as well in this context.

The ombudsman in Clause 3 

" 3. have the right to have access to (but not to publish if otherwise
confidential) all necessary information and records from ICANN staff and
constituent bodies to enable an informed evaluation of the complaint and to
assist in dispute resolution where feasible (subject only to such
confidentiality obligations as are imposed by the complainant or any
generally applicable confidentiality policies adopted by ICANN);"

So there has been much discussion about access to documents, but in the
context of a complaint by the community I have that power. I am surprised
this has been rarely used.

Chris LaHatte
Blog  https://omblog.icann.org/
Webpage http://www.icann.org/en/help/ombudsman

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

-----Original Message-----
From: accountability-cross-community-bounces at icann.org
[mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Bruce
Sent: Wednesday, January 13, 2016 10:25 PM
To: Accountability Cross Community
<accountability-cross-community at icann.org>
Subject: [CCWG-ACCT] Further Board feedback on Inspection rights

First, the Board agrees with an inspection right that limited to accounting
books and records.  The Board also agrees that the inspection right can be
invoked by a single SO or AC.  The inspection right, however, does not need
to be a right reserved to the Sole Designator.  As explained in the Board's
Comments on the Third Draft Proposal, the inspection right should be a
community right, and not a right reserved to the Sole Designator.   Giving
the Sole Designator a right of inspection - as opposed to making it a right
held by the community - represents a significant and inappropriate change to
the Sole Designator.   The Sole Designator can be used to enforce the
community's right of inspection (through the escalation process, if ICANN
errs in response).   Particularly when a single SO or AC could invoke the
inspection right, requiring that demand to go through a community process to
direct the Sole Designator seems to add complexity that is not necessary.  
The Board therefore recommends changing the words of Paragraph 20 to "the
CCWG-Accountability recommends including in the ICANN Bylaws the right for
SOs or ACs to inspect as outlined in California Corporations Code 6333,
although this specific article reference would not be mentioned in the

For Paragraph 21, "This inspection right is distinct from the Document
Information Disclosure Policy (DIDP). While any eligible party can file a
request according to the DIDP, Inspection Rights are only accessible to SOs
or ACs. The scopes are also different as explained below."  "Unlike the
exercise of the other community powers, which require community engagement
and escalation before initiating a request for action by the EC, the
CCWG-Accountability recommends that a petition for inspection be brought
directly by a single SO/AC or by multiple SO/ACs through making a written
demand on ICANN for the requested materials. If the Board refused or ignored
the request, the petitioning SO/AC(s) could then initiate an escalating
community decision-making process to enforce the demand on the Board,
requiring community consensus."

The Board agrees with the inclusion of an investigation right, and notes
that the language proposed in the redline reflects the Board's comments.
Finally, the Board reaffirms its commitment to addressing improvements to
the DIDP in WS2, and thanks the CCWG for the clarification in the document
on the differences between the inspection right and the DIDP.

Bruce Tonkin

Board Liaison to the CCWG

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