[Ws2-transparency] [Ext] FW: Transparency & Ombudsmen Groups

Fri Jan 13 21:08:01 UTC 2017

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 don’t 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
>
> https://www.facebook.com/ICANNOmbudsman
>
> Twitter: @IcannOmbudsman
>
>
>
> ICANN Expected Standards of Behavior:
>
> https://www.icann.org/sites/default/files/assets/expected-
> standards-22aug16-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: *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 <+33%206%2007%2066%2089%2033>
>
> Blog: http://sebastien.bachollet.fr[sebastien.bachollet.fr]
> <https://urldefense.proofpoint.com/v2/url?u=http-3A__sebastien.bachollet.fr&d=DgMFAw&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=kIm7BGIl3qR3NKOfU-SwstwQr15K9OhllVGUWu0k8uc&m=7AKL8wQVl8aHcxBXBV-3Ejd4ZSFZLNZtD_Ju0lkuuLE&s=CpkpL92KvaHUOVldnl8ZoXizg4GX20IftvYHj5P_luY&e=>
> /
>
> 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 “not reasonable,
> excessive or overly burdensome, not feasible, abusive or vexatious or made
> by a vexatious or querulous individual” 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 “not
> reasonable, excessive or overly burdensome, not feasible, abusive or
> vexatious or made by a vexatious or querulous individual” should be amended
> to require the consent of the Ombudsman before it is invoked. *
> A further recommendation is that the Ombudsman’s 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 ICANN’s 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 DIDP’s 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 Ombudsman’s 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 ICANN’s 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.*
>
>
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