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

Tue Jan 17 20:21:18 UTC 2017

Hi Michael and all…

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-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: <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<mailto:herb.waye at icann.org>> wrote:
Hi Michael and everyone else,

I guess what I don’t want to happen is to have the Ombudsman given powers to make a ruling as part of another department’s 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 couldn’t 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 can’t 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<mailto:mkaranicolas at gmail.com>> on behalf of Michael Karanicolas <michael at law-democracy.org<mailto:michael at law-democracy.org>>
Date: Friday, January 13, 2017 at 4:08 PM
To: Herb Waye <herb.waye at icann.org<mailto:herb.waye at icann.org>>
Cc: "sebastien at bachollet.com<mailto:sebastien at bachollet.com>" <sebastien at bachollet.com<mailto:sebastien at bachollet.com>>, "cwilson at 21cf.com<mailto:cwilson at 21cf.com>" <cwilson at 21cf.com<mailto:cwilson at 21cf.com>>, "ws2-transparency at icann.org<mailto:ws2-transparency at icann.org>" <ws2-transparency at icann.org<mailto: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<mailto: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[icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_ombudsman&d=DgMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=kIm7BGIl3qR3NKOfU-SwstwQr15K9OhllVGUWu0k8uc&m=U_okpV4T9-RGXBUMYWeTk1ywywHOsFwpRfYHSW-Algg&s=UCHkgmSRDT6fQTvXC0ktloJOWFwDhrhmvzhBicCsL3w&e=>
https://www.facebook.com/ICANNOmbudsman[facebook.com]<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.facebook.com_ICANNOmbudsman&d=DgMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=kIm7BGIl3qR3NKOfU-SwstwQr15K9OhllVGUWu0k8uc&m=U_okpV4T9-RGXBUMYWeTk1ywywHOsFwpRfYHSW-Algg&s=41ZlpXT8yt0n0Qkv4WHjLGogiX5EBSzfjgXoXMW7haI&e=>
Twitter: @IcannOmbudsman

ICANN Expected Standards of Behavior:
https://www.icann.org/sites/default/files/assets/expected-standards-22aug16-en.pdf[icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_sites_default_files_assets_expected-2Dstandards-2D22aug16-2Den.pdf&d=DgMFaQ&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=kIm7BGIl3qR3NKOfU-SwstwQr15K9OhllVGUWu0k8uc&m=U_okpV4T9-RGXBUMYWeTk1ywywHOsFwpRfYHSW-Algg&s=ADBJP9Um7zWsyoIt3tGy8YdaZFQ4DK1B2yRasTIKJh0&e=>

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<mailto:sebastien at bachollet.com>>
Date: Wednesday, January 11, 2017 at 5:12 PM
To: Herb Waye <herb.waye at icann.org<mailto:herb.waye at icann.org>>
Subject: [Ext] FW: Transparency & Ombudsmen Groups

Pour info
Sébastien Bachollet
+33 6 07 66 89 33<tel:+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<mailto:sebastien at bachollet.com>>

De : <mkaranicolas at gmail.com<mailto:mkaranicolas at gmail.com>> on behalf of Michael Karanicolas <michael at law-democracy.org<mailto:michael at law-democracy.org>>
Date : mercredi 11 janvier 2017 à 22:15
À : Sébastien Bachollet <sebastien at bachollet.com<mailto:sebastien at bachollet.com>>
Cc : "Wilson, Christopher" <cwilson at 21cf.com<mailto: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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