[Ws2-transparency] Ombudsman-Transparency Harmonization

Sun Jan 22 16:07:37 UTC 2017

Hi Micahel,

Thanks for this.

I’ve read with deep concern the proposal by the Ombudsman that has been partially accepted by the Transparency team that the Complaints Officer may be involved in determining whether DIDP requests are “frivolous or vexatious”. This is not the proper role of the Complaints Officer and, indeed, it seems some are already attempting to expand the role of that Office before it has even been filled.

The NCSG had concerns about this new Office and raised it with ICANN CEO Goran Marby at our session with the ICANN Board in Hyberabad. Mr. Marby assured us that the Complaints Office was to deal only in “practical” complaints, that is those types of complaints that deal with the functioning of the corporation in its normal operational activities. Deciding whether DIDP information requests are allowed certainly would be an expansion of the remit of that Office.

Might I remind everyone that the Complaints Officer will be reporting to the head of ICANN Legal – the same folks who likely would be the front line in determining whether they wanted to respond to a DIDP request or not. We can not have anyone on ICANN’s direct payroll not subject to community approval deciding whether information requests are vexatious or frivolous. That is a recipe for abuse of the process.

I will note that this idea came from the current Ombudsman. I will once again state my opposition to his participation as anything more than an information resource, acting upon information requests from us, in any group considering his role going forward. I understand that ICANN Legal felt his role in this group was not problematic. That said, I’m unaware of any member of the ICANN Legal staff with an expertise in corporate ethics: this is a very specialized field. I continue to believe that request for a legal opinion should have been referred to outside counsel.   

The problem here is one of conflict and I’m still amazed the current Ombudsman does not voluntarily recuse himself from this group regardless of any opinion received from ICANN Legal.

In fact, the optics of the current proposal are just plain bad. Within a month of receiving an opinion from ICANN Legal stating that he should be allowed to participate in this subgroup the Ombudsman proposes to shift some accountability processes from his supposed independent office to one reporting to ICANN Legal? Regardless of actual motive for the proposal, which knowing the individual involved I certainly believe was done in good faith, the perception is horrible.

No employee directly employed by ICANN corporate without community input or approval should be the party determining whether a DIDP request is vexatious or frivolous. Past experience with the DIDP suggests that giving ICANN employees such powers will lead to its abuse.

Kind Regards,

Ed Morris

----------------------------------------
 From: "Michael Karanicolas" <michael at law-democracy.org>
Sent: Sunday, January 22, 2017 3:09 PM
To: ws2-ombudsman at icann.org, ws2-transparency at icann.org, "Sébastien Bachollet" <sebastien at bachollet.com>, "Wilson, Christopher" <cwilson at 21cf.com>
Subject: [Ws2-transparency] Ombudsman-Transparency Harmonization   
 Hello all,

As a follow up to the last CCWG plenary call, Sébastien and I just had a chat regarding thematic areas of overlap between the Ombudsman and Transparency subgroups. As you will have hopefully seen, we also had a conversation with the current Ombudsman on his thoughts regarding these new responsibilities, and where they should be tasked.  
 The result of these discussions has been to tweak the language of the recommendations a bit, so that the roles that we had initially recommended be handed over to the Ombudsman, for reviewing denials due to requests being frivolous or vexatious and to carry out public monitoring and evaluation of how the DIDP system is working, will now be recommended to be handed to either the Ombudsman OR the Complaints Officer, to allow for a little more flexibility depending on how the former's role may be reshaped by the Ombudsman workstream process, and for how the latter's role eventually takes shape. 

 We'll be discussing this at the next plenary, but I wanted to put it on everyone's radar early as well. As usual, feedback is welcome.

 Best,

 Michael Karanicolas

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