[council] RE: Council report required for the Board on the recently approved WHOIS recommendation

[Olof Nordling]

Hi Bruce,
Hmmm, mostly in agreement but with slightly different interpretations:

As I read it, the judgment in what way Art 3.6.1 (apologies for switching
the numbers around in my previous mail) is applicable to a proposal should
be made before it is submitted to the Board - not by the Board (otherwise
there is a procedural loop). Our assessment was that this proposal did not
"substantially affect the operation of the Internet or third parties,
including the imposition of any fees or charges", meaning that the posting
requirements etc in the sub-paragraphs are not applicable. 

There are no other requirements for postings prior to Board treatment,
really. As to the Board report, a 21 day posting is not required as such and
would potentially be in conflict with Annex A, article 13: 
"13. Board Vote
a. The Board will meet to discuss the GNSO Council recommendation as soon as
feasible after receipt of the Board Report from the Staff Manager."

Just to recall; for the registry services PDP (which was deemed to be within
the scope of Art 3.6.1) we posted only the Final Report for an extra round
of public comments etc, after the Council Supermajority vote and prior to
Board decision.  

Best regards
Olof




-----Original Message-----
From: Bruce Tonkin [mailto:Bruce.Tonkin at melbourneit.com.au] 
Sent: Wednesday, January 04, 2006 6:41 AM
To: olof nordling
Cc: council at gnso.icann.org
Subject: RE: Council report required for the Board on the recently approved
WHOIS recommendation

Hello Olof,


> Thanks for the reminder - Maria and I have talked about it 
> and she will produce the report, aiming for the February 
> Board meeting. We have also considered whether we should 
> launch an additional public comment period on it. In view of 
> the Bylaws, Art 6.3.1, we don't see that as necessary in this 
> case and we're keen to hear your view on it.

>From a Board transparency (Article III of the bylaws) point of view I
think it is good practice that the topic be published in a Board agenda
well before the February Board meeting, and that a copy of the "Board
Report" (as required in section 11 of Annex A of the ICANN bylaws) be
available on the public ICANN website at least 21 days prior to the
Board meeting.

With respect to formally seeking further public comment - I think that
decision is up to the Board.  It is not a requirement of the PDP process
managed by the GNSO Council.

The relevant section of the bylaws from Article III relating to a Board
decision is:

"Section 6. NOTICE AND COMMENT ON POLICY ACTIONS

1. With respect to any policies that are being considered by the Board
for adoption that substantially affect the operation of the Internet or
third parties, including the imposition of any fees or charges, ICANN
shall:

a. provide public notice on the Website explaining what policies are
being considered for adoption and why, at least twenty-one days (and if
practical, earlier) prior to any action by the Board; 

b. provide a reasonable opportunity for parties to comment on the
adoption of the proposed policies, to see the comments of others, and to
reply to those comments, prior to any action by the Board; and 

c. in those cases where the policy action affects public policy
concerns, to request the opinion of the Governmental Advisory Committee
and take duly into account any advice timely presented by the
Governmental Advisory Committee on its own initiative or at the Board's
request.

2. Where both practically feasible and consistent with the relevant
policy development process, an in-person public forum shall also be held
for discussion of any proposed policies as described in Section 6(1)(b)
of this Article, prior to any final Board action.

3. After taking action on any policy subject to this Section, the Board
shall publish in the meeting minutes the reasons for any action taken,
the vote of each Director voting on the action, and the separate
statement of any Director desiring publication of such a statement."


As other Council members have already noted, this particular issue has
already been subject to public comment processes, and opportunity for
comment has also been made available at in-person public forums (e.g
GNSO public forum in Luxembourg).

Regards,
Bruce Tonkin