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ICA Response to the ICANN Ombudsman's Findings
===ICANN Ombudsman's Action to the IRT Complaint===
After receiving the complaint filed by ICA Legal Counsel Philip Corwin regarding the operations of the IRT, ICANN Ombudsman Frank Fowlie reviewed the case and conducted an investigation. On June 3, 2009, Fowlie sent a detailed preliminary report answering the concerns of Corwin.<ref>[ ICA Tells ICANN Ombudsman Office Its IRT Report is “Tardy, Nonresponsive and Non-Persuasive”]</ref>
First, regarding Corwin's complain on May 8 that he was not given a fair opportunity to either participate in the IRT as a member or to encourage others to join the application process, Fowlie verified the traffic on the GNSO listserv; the content of the ICANN website, news releases and he also personally asked the [[IP Constituency]] President on how they conduct their information dissemination. He found that the internet community was informed through the following:
# an announcement of the call for candidates on the GNSO list;
# it was included in the ICANN newsletter;
# and it was announced on the ICANN website
He also found that Corwin was invited by the IRT and he even conducted a presentation during the IRT meeting in San Francisco. Fowlie pointed out that based on the evidences, ICANN and or the selecting members of the IRT did not act in any way to prevent Corwin or any other person from learning about the call for IRT candidates. He believed that '''there is no evidence that the opportunity to serve as a member of the IRT was either unfairly administered, or that the general make-up of the members was unfair to those who were not selected.'''
Second, On the issue of openness and transparency, Fowlie pointed out that it is generally accepted by the public that a full verbatim report may not be provided by participants in ICANN discussions & meetings . Minutes are provided instead of full verbatim reports particularly, the [[ICANN Board]] of Director's Meetings. In addition, Fowlie emphasized that some of the meetings are video recorded especially when there a need for consensus. With regards to the IRT on March 25, Fowlie quoted Item 4 on its preliminary report, which reads:
"Reporting & Transparency – the call today was recorded since IRT operational protocols being decided on the call; minutes of this call and all meetings shall be posted on the wiki; many team members raised concerns about being able to participate fully and effectively if team work was fully public; agreed to closed mailing list, recordal of calls for IRT members only, no distribution of MP3, discussions to be confidential except general updates and ideas may be shared provided no attribution; issue of conflicts raised and agreed participants shall submit statements of interest."
Based on his finding Fowlie found that the IRT meeting were recorded appropriately and the minutes were posted on the website to inform the internet community. He also added that the statements of interests were included on the IRT Final Report. Fowlie reported, '''he cannot make the determination that ICANN has acted unfairly by producing minutes as opposed to verbatim recordings of the IRT meetings.'''
Third, Corwin requested the Ombudsman to compel IRT to release the conflict of interest disclosure statements of applicants to the public. Fowlie explained that ICANN adhere to the principles of freedom of information and privacy. One the principles is not to release third party information held by an agency, government, organization, etc. In the case of IRT members, their privacy is respected by ICANN. In addition, Fowlie pointed out that the members of the ICANN Board are required to disclose their conflict of interests but their statements are treated with confidentially. He said that it only proper to extend the same level of confidentiality to the IRT members. Furthermore, he emphasized that the IRT Final Report included the identity of the members of the IRT, their position, place of company or affiliation as well as their statements of interested, which can be found on the website. Fowlie concluded that, '''it is not an unfairness for ICANN to refuse to release third party information about members of the IRT.'''
===ICA Response to the ICANN Ombudsman's Findings===
On June 12, 2009, Corwin responded to the Ombudsman's report describing it as '''tardy, non-responsive and non-persuasive.''' Corwin expressed his dissatisfaction to the report and pointed out two '''overarching problems.''' First, the report is late and it took the Ombudsman Fowlie 6.5 weeks to address the issue. Second, Fowlie failed to respond [[ICA]]'s main complaint that the IRT as a constituent body of ICANN should operate in accordance with ICANN Bylaws. Furthermore, Corwin said that he bring ICA's views regarding the IRT recommendations to the ICANN Meeting in Sydney. He emphasized, '''If ICANN does try to do an end run around its own prescribed policy making process we shall likely seek redress through means other than an appeal to its Ombudsman office.'''<ref>[ ICA Tells ICANN Ombudsman Office Its IRT Report is “Tardy, Nonresponsive and Non-Persuasive”]</ref>
On June 25, 2009, during the public forum at ICANN Sydney, Corwin raised the concerns of ICA regarding the IRT process. He emphasized that the team was not operating within the requirements set forth by the ICANN Bylaws as a constituent body to maximize transparency and representation. During the forum, He said, "allowing a single constituency to control the agenda and membership of a short-term adhoc group and have its recommendations implemented without further community wide policy review would be a terrible precedent, a very dangerous precedent." Participants in the forum were given 2 minutes to ask questions or state their concerns to the [[ICANN Board]]. Corwin used up his entire 2 minutes stating his point of views and complaints, the ICANN Board did not have enough time to respond to his concerns since majority of the members of the ICANN community were also waiting for their turns to be heard and state their concerns.<ref>[ ICANN Public Forum, ICANN - Sydney, Thursday 25 June 2009]</ref>

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