[Ws2-transparency] [Ws2-ombudsman] Ombudsman-Transparency Harmonization

[Michael Karanicolas]

Hi,

Thanks very much for those comments, which touch on a lot of very
salient points. Since independence seems to be at the heart of the
matter, let me spell out my thinking for why the lack of independence
of the Complaints Officer doesn't necessarily undermine their ability
to perform these roles, for the groups' consideration. I see, as well,
that the recent Ombudsman subgroup call also asked for a bit of
further enumeration on the qualities that underlie these processes, so
perhaps I can give my thoughts on that here as well.

There's two functions that we're talking about. The first is
monitoring & evaluation: tracking and publishing statistics on how the
DIDP system is working and making recommendations for improvement. For
this, I don't think independence is actually that important. The
tracking/monitoring function is basically clerical, and if done
transparently the numbers should tell their own story. Independence
does factor a bit into the idea of making recommendations - but again
if the statistics are published, there's going to be pressure there
either way from the engaged community. Ideally, you'd want your
oversight body getting ahead of that, but that's more a function of
the office's efficacy and drive than their independence. To me, this
function should go to whoever's better equipped to perform general M&E
functions at ICANN, which in turn depends on how the Complaints Office
is structured, which is why I support leaving it a bit open, as the
latter's role becomes further defined.

The second function is providing oversight/review over the refusal of
frivolous or vexatious requests. Here I fully agree with Ed on the
need for independent oversight - and totally concur that this
exception needs to be handled carefully based on the potential for
abuse. However, it's worth noting that Herb's argument that this
should be handled by the Complaints Officer is based on the need to
preserve his role to potentially provide an independent secondary
review. Now - I don't fully concur with Herb's rationale regarding
conflicts. Personally, I don't see why the Ombudsman's role at the
tail end of the process needs to be preserved if we're giving him a
role at the front end. In my mind - there's no potential for a
conflict because there's no need for an additional appeal if the
Ombudsman has already reviewed it and signed off - the appeal would
have, in effect, already taken place, so there's no conflict because
there's no further process. However, it's important to bear in mind
that, as Herb is framing the process, a decision by the Complaints
Officer to approve the dismissal of a request as being frivolous or
vexatious is STILL SUBJECT to appeal to the Ombudsman. In other words
- you still have the possibility for independent review. You also have
the possibility of carrying out an IRP appeal, just as you would with
any other exception.

So that's my thinking. Happy to chat further.

Mike

On Sun, Jan 22, 2017 at 11:06 PM, Alberto Soto
<asoto at ibero-americano.org> wrote:
> And ombusd would not be independent…
>
> Regards
>
>
>
> Alberto
>
>
>
> De: ws2-ombudsman-bounces at icann.org [mailto:ws2-ombudsman-bounces at icann.org]
> En nombre de Edward Morris
> Enviado el: Sunday, January 22, 2017 1:08 PM
> Para: ws2-ombudsman at icann.org; ws2-transparency at icann.org; Sébastien
> Bachollet <sebastien at bachollet.com>; Wilson, Christopher <cwilson at 21cf.com>;
> Michael Karanicolas <michael at law-democracy.org>
> Asunto: Re: [Ws2-ombudsman] [Ws2-transparency] Ombudsman-Transparency
> Harmonization
>
>
>
> 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