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

[Michael Karanicolas]

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 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> 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> 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 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://www.facebook.com/ICANNOmbudsman[facebook.com]
>
> Twitter: @IcannOmbudsman
>
>
>
> ICANN Expected Standards of Behavior:
>
> https://www.icann.org/sites/default/files/assets/expected-standards-22aug16-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 “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.
>
>
>
>