Documentary Information Disclosure Policy: Difference between revisions

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[[File:DIDP Outcomes as of 2021.jpg|800px|right]]

Since the initiation of the DIDP process, 166 DIDP requests have been filed (as of December 2021). Of those, 78 requests were declined, 45 were responded to with links to publicly available information, and 41 resulted in the disclosure of some amount of new information (documentary or otherwise). These statistics are based on the review of all requests by ICANNWiki editors.

* ~~Characterization~~ of a request as "Declined" occurs in situations where, whether or not links to publicly available information ~~was~~ provided, the response ~~included~~ rationales for rejection of all or part of a request for additional documents.

* ''Declined: the response included rationales for rejection of all or part of a request for additional documents'' <br/>The characterization of a request as "Declined" occurs in situations where, whether or not links to publicly available information are provided, the response includes rationales for the rejection of all or part of a request for additional documents.

* "Provided Public Information," ~~by contrast,~~ involves situations where the vast majority of the information sought ~~was~~ available in public documents. ~~While~~ ICANN may ~~have cited~~ a threshold rationale (i.e., no obligation to compile or create responsive documents), there ~~was~~ essentially no more information beyond the publicly available resources, ~~and so~~ nothing further to produce. While all "Provided Public Information" responses are, strictly speaking, denied requests for additional or non-public documentary information, the responses still sufficiently answer the questions posed by the requester.

* ''Pointed to Public Information: the response denies the request for additional documentary information; however, it sufficiently answers the questions posed by the requester by pointing to publically available documents'' <br/>The characterization of "Provided Public Information" involves situations where the vast majority of the information sought is already available in public documents. ICANN may cite a threshold rationale (i.e., no obligation to compile or create responsive documents), but there is essentially no more information beyond the publicly available resources; thus, there is nothing further to produce.

* "Information Disclosed~~" responses~~ either ~~disclosed~~ actual documents or ~~provided~~ new information to the requester.

* ''Information Disclosed: the response either discloses actual documents or provides new information to the requester''<br/> In most cases, only some of the documents responsive to the request were disclosed. This category also contains situations where no documents were available (or requested) but information or context could be provided nonetheless.

===Top Requesters & Topics Thus Far===

The Indian Centre for Internet & Society is by far the top user of the DIDP process, accounting for over a quarter of the submitted requests (as of December 2021). Often the requests have sought details about or ~~taken issue with the operations~~ of ~~the~~ ICANN organization or board. Other times, the requests reflect [[~~https://icannwiki.org/~~ICANN_Historical_Timeline|eras in ICANN's history]], such as when ICANN was running the New gTLD Program.

The Indian Centre for Internet & Society is by far the top user of the DIDP process, accounting for over a quarter of the submitted requests (as of December 2021). The most frequent requestors have tended to be lawyers, journalists, representatives from Internet governance organizations, and staunch supporters of ICANN's commitment to the [[Multistakeholder Model]].

Often the requests have sought details about or more [[transparency]]/[[accountability]] in terms of ICANN organization or board operations. Other times, the requests reflect [[ICANN_Historical_Timeline|eras of ICANN's history]], such as when ICANN was running the New gTLD Program.

{| class="wikitable"

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'''Issues with Review/Challenge Mechanisms'''<br/>

The ALAC, A19, BC, Leap of Faith, and RySG supported expanding the role of the Ombudsman to include providing the mechanism for requestors seeking review of DIDP responses. The ALAC recommended that the DIDP and responses refer requestors to review mechanisms for challenging DIDP responses. The BC suggested a 30-day window within which a requester can seek a review of a denial of disclosure. The BC suggested that requestors submit a request for review and the reason for denial of disclosure, which the Ombudsman should assess within 30 days of receipt. The BC said the Ombuds’ review should be published as advisory to the ICANN org, with 14 days to respond. The RySG stated that the Ombuds would likely have to recuse themselves from any [[Reconsideration]] request challenging a DIDP response they had reviewed and the [[Complaints Office]] may be better suited for this role.<ref>[https://itp.cdn.icann.org/en/files/documentary-information-disclosure-policy-didp/summary-report-revisions-didp-28-01-2022-en.pdf Proposed Changes to DIDP Public Comment Summary Report, Jan 2022, ICANN Files]</ref>

===Board Approval===

On January 21, 2023, the ICANN Board approved the revised DIDP as set forth in the document titled "[https://www.icann.org/resources/pages/didp-2023-01-24-en ICANN Documentary Information Disclosure Policy (As amended 21 January 2023)]".<ref>[https://www.icann.org/en/board-activities-and-meetings/materials/approved-resolutions-regular-meeting-of-the-icann-board-21-01-2023-en#section2.b Approved Resolutions, Board Meeting January 21, 2023 Section 2.c, Board Activities, ICANN]</ref>

===Updated language in DIDP===

The following language was added to the DIDP to highlight the availability of the Office of the [[Ombudsman]] if a requestor is not satisfied with a DIDP response:

‎<blockquote>

To the extent a requestor chooses to seek review of a response to a request pursuant to the DIDP, a requestor may seek any of the accountability mechanisms afforded under the Bylaws to the extent applicable, such as the Reconsideration Request process in accordance with Bylaws, Article 4, Section 4.2, or the Independent Review Process in accordance with Bylaws, Article 4, Section 4.3, or Ombudsman process if a requestor believes that the response was unfair in accordance with Bylaws, Article 5.<ref>[https://www.icann.org/en/board-activities-and-meetings/materials/approved-resolutions-regular-meeting-of-the-icann-board-21-01-2023-en#section2.c Approved Resolutions, Board Meeting January 21, 2023 Section 2.c Rationale, Board Activities, ICANN]</ref>‎</blockquote>

==Criticism==

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::*# Revise the new language on conditions for nondisclosure.<ref>[https://itp.cdn.icann.org/forms/publiccomment/submission/AL-ALAC-ST-1221-01-00-EN.pdf ALAC Submission on Proposed DIDP Changes, Public Comment, ICANN]</ref>

::* [[Kevin Murphy]] summarized various community members' and collectives' critiques as accusing ICANN of "shirk its transparency obligations" by granting greater ability to deny requests without any explanation.<ref>[https://domainincite.com/27342-icann-trying-to-water-down-its-transparency-obligations ICANN trying to water down its transparency obligations, DomainIncite]</ref>

* Dr. [[Sarah Clayton]] argues that the 12 defined conditions of non-disclosure (DCND) "essentially provide an administrative loophole for ICANN to restrict the free flow of information."<ref>[~~http~~://~~sunbelt2016~~.~~insna~~.~~org~~/~~wp-content/uploads/2016~~/04/~~2016-Sunbelt-Program_040516_FINAL_wchange-for-online~~.pdf International Sunbelt Social Network Conference 2016]</ref> Furthermore, her statistical p* models demonstrate that

* Dr. [[Sarah Clayton]] argues that the 12 defined conditions of non-disclosure (DCND) "essentially provide an administrative loophole for ICANN to restrict the free flow of information."<ref name="sunbelt">[https://www.dropbox.com/s/o7jd31k0z40fdoc/36_Abstracts.pdf?dl=0 International Sunbelt Social Network Conference 2016 - Abstracts Archive]</ref> Furthermore, her statistical p* models demonstrate that

*# [[ICANN Organization]] considers lengthier submissions to be more likely to request contentious information and are more likely to apply DCND to them

*# ICANN [[Stakeholder Groups]]/[[Working Group]]s are more likely to receive DCND in every condition category, except the "Affects Individual" condition

*# "Burdensome conditions" are rarely imposed on [[:Category:Legal Practices|law firms]], which tend to request precise information about a specific case

*# [[Registrant]]s are less likely to receive ICANN "Integrity" conditions as they are more concerned about their own domain name registrations than about ICANN

*# "Confidential External Business Information" conditions are less likely to be imposed on the internet [[:Category:Non-Profit|non-profits]], as they are more interested in ICANN’s interface with [[Internet Governance]] than third-party business interests.<ref~~>[http:~~/~~/sunbelt2016.insna.org/wp-content/uploads/2016/04/2016-Sunbelt-Program_040516_FINAL_wchange-for-online.pdf International Sunbelt Social Network Conference 2016]</ref~~>

*# "Confidential External Business Information" conditions are less likely to be imposed on the internet [[:Category:Non-Profit|non-profits]], as they are more interested in ICANN’s interface with [[Internet Governance]] than third-party business interests.<ref name="sunbelt" />

* Indian stakeholders have cited difficulties in accessing documents under DIDP and asked for greater transparency.<ref>[https://www.ohchr.org/Documents/Issues/Expression/IntOrganizations/CCG_NLU.pdf Centre for Communication Governance at National Law University, Delhi Submission to the United Nations Special Rapporteur on Freedom of Speech and Expression: Study on Access to Information in International Organizations pg. 5]</ref>

** [[Padmini Baruah]], of [[The Centre for Internet and Society]], explains that ICANN deflects most requests for information, using clauses about internal processes, stakeholder discussions, protecting financial interests of third parties (cited in over 50% of the responses up to 2016) to avoid disclosing its [[Contractual Compliance]] audits and reports of abuse to [[registrar]]s. Baruah's complaint is that because ICANN regulates a global public good, it should be far more open.<ref name="baruah">[https://cis-india.org/internet-governance/blog/peering-behind-the-veil-of-icanns-didp-ii Padmini Baruah, Peering behind the veil of ICANN's DIDP (II), CIS-India]</ref> Baruah presented on this topic at an [[NCUC]] session during [[ICANN 55]], and [[George Sadowsky]] was invited to comment on her findings. He noted that there were some discrepancies between Baruah's assessments of the history of the DIDP mechanism and ICANN staff's assessment of the same history.<ref>[https://meetings.icann.org/en/marrakech55/schedule/tue-ncuc/transcript-ncuc-08mar16-en ICANN 55 Archive - Transcript, Non-Commercial Users Constituency Meeting], March 8, 2016 (starting at page 59) (PDF)</ref> Baruah subsequently submitted a DIDP request in an attempt to reconcile her analysis with that of ICANN staff. ICANN responded in part:

@@ Line 49: / Line 49: @@
 [[File:DIDP Outcomes as of 2021.jpg|800px|right]]
 Since the initiation of the DIDP process, 166 DIDP requests have been filed (as of December 2021). Of those, 78 requests were declined, 45 were responded to with links to publicly available information, and 41 resulted in the disclosure of some amount of new information (documentary or otherwise). These statistics are based on the review of all requests by ICANNWiki editors.
-* Characterization of a request as "Declined" occurs in situations where, whether or not links to publicly available information was provided, the response included rationales for rejection of all or part of a request for additional documents.
+* ''Declined: the response included rationales for rejection of all or part of a request for additional documents'' <br/>The characterization of a request as "Declined" occurs in situations where, whether or not links to publicly available information are provided, the response includes rationales for the rejection of all or part of a request for additional documents.
-* "Provided Public Information," by contrast, involves situations where the vast majority of the information sought was available in public documents. While ICANN may have cited a threshold rationale (i.e., no obligation to compile or create responsive documents), there was essentially no more information beyond the publicly available resources, and so nothing further to produce. While all "Provided Public Information" responses are, strictly speaking, denied requests for additional or non-public documentary information, the responses still sufficiently answer the questions posed by the requester.
+* ''Pointed to Public Information: the response denies the request for additional documentary information; however, it sufficiently answers the questions posed by the requester by pointing to publically available documents'' <br/>The characterization of "Provided Public Information" involves situations where the vast majority of the information sought is already available in public documents. ICANN may cite a threshold rationale (i.e., no obligation to compile or create responsive documents), but there is essentially no more information beyond the publicly available resources; thus, there is nothing further to produce.
-* "Information Disclosed" responses either disclosed actual documents or provided new information to the requester.
+* ''Information Disclosed: the response either discloses actual documents or provides new information to the requester''<br/> In most cases, only some of the documents responsive to the request were disclosed. This category also contains situations where no documents were available (or requested) but information or context could be provided nonetheless.
 ===Top Requesters & Topics Thus Far===
-The Indian Centre for Internet & Society is by far the top user of the DIDP process, accounting for over a quarter of the submitted requests (as of December 2021). Often the requests have sought details about or taken issue with the operations of the ICANN organization or board. Other times, the requests reflect [[https://icannwiki.org/ICANN_Historical_Timeline|eras in ICANN's history]], such as when ICANN was running the New gTLD Program.
+The Indian Centre for Internet & Society is by far the top user of the DIDP process, accounting for over a quarter of the submitted requests (as of December 2021). The most frequent requestors have tended to be lawyers, journalists, representatives from Internet governance organizations, and staunch supporters of ICANN's commitment to the [[Multistakeholder Model]].
+Often the requests have sought details about or more [[transparency]]/[[accountability]] in terms of ICANN organization or board operations. Other times, the requests reflect  [[ICANN_Historical_Timeline|eras of ICANN's history]], such as when ICANN was running the New gTLD Program.
 {| class="wikitable"
@@ Line 105: / Line 107: @@
 '''Issues with Review/Challenge Mechanisms'''<br/>
 The ALAC, A19, BC, Leap of Faith, and RySG supported expanding the role of the Ombudsman to include providing the mechanism for requestors seeking review of DIDP responses. The ALAC recommended that the DIDP and responses refer requestors to review mechanisms for challenging DIDP responses. The BC suggested a 30-day window within which a requester can seek a review of a denial of disclosure. The BC suggested that requestors submit a request for review and the reason for denial of disclosure, which the Ombudsman should assess within 30 days of receipt. The BC said the Ombuds’ review should be published as advisory to the ICANN org, with 14 days to respond. The RySG stated that the Ombuds would likely have to recuse themselves from any [[Reconsideration]] request challenging a DIDP response they had reviewed and the [[Complaints Office]] may be better suited for this role.<ref>[https://itp.cdn.icann.org/en/files/documentary-information-disclosure-policy-didp/summary-report-revisions-didp-28-01-2022-en.pdf Proposed Changes to DIDP Public Comment Summary Report, Jan 2022, ICANN Files]</ref>
+===Board Approval===
+On January 21, 2023, the ICANN Board approved the revised DIDP as set forth in the document titled "[https://www.icann.org/resources/pages/didp-2023-01-24-en ICANN Documentary Information Disclosure Policy (As amended 21 January 2023)]".<ref>[https://www.icann.org/en/board-activities-and-meetings/materials/approved-resolutions-regular-meeting-of-the-icann-board-21-01-2023-en#section2.b Approved Resolutions, Board Meeting January 21, 2023 Section 2.c, Board Activities, ICANN]</ref>
+===Updated language in DIDP===
+The following language was added to the DIDP to highlight the availability of the Office of the [[Ombudsman]] if a requestor is not satisfied with a DIDP response:
+‎<blockquote>
+To the extent a requestor chooses to seek review of a response to a request pursuant to the DIDP, a requestor may seek any of the accountability mechanisms afforded under the Bylaws to the extent applicable, such as the Reconsideration Request process in accordance with Bylaws, Article 4, Section 4.2, or the Independent Review Process in accordance with Bylaws, Article 4, Section 4.3, or Ombudsman process if a requestor believes that the response was unfair in accordance with Bylaws, Article 5.<ref>[https://www.icann.org/en/board-activities-and-meetings/materials/approved-resolutions-regular-meeting-of-the-icann-board-21-01-2023-en#section2.c Approved Resolutions, Board Meeting January 21, 2023 Section 2.c Rationale, Board Activities, ICANN]</ref>‎</blockquote>
 ==Criticism==
@@ Line 114: / Line 122: @@
 ::*# Revise the new language on conditions for nondisclosure.<ref>[https://itp.cdn.icann.org/forms/publiccomment/submission/AL-ALAC-ST-1221-01-00-EN.pdf ALAC Submission on Proposed DIDP Changes, Public Comment, ICANN]</ref>
 ::* [[Kevin Murphy]] summarized various community members' and collectives' critiques as accusing ICANN of "shirk its transparency obligations" by granting greater ability to deny requests without any explanation.<ref>[https://domainincite.com/27342-icann-trying-to-water-down-its-transparency-obligations ICANN trying to water down its transparency obligations, DomainIncite]</ref>
-* Dr. [[Sarah Clayton]] argues that the 12 defined conditions of non-disclosure (DCND) "essentially provide an administrative loophole for ICANN to restrict the free flow of information."<ref>[http://sunbelt2016.insna.org/wp-content/uploads/2016/04/2016-Sunbelt-Program_040516_FINAL_wchange-for-online.pdf International Sunbelt Social Network Conference 2016]</ref> Furthermore, her statistical p* models demonstrate that
+* Dr. [[Sarah Clayton]] argues that the 12 defined conditions of non-disclosure (DCND) "essentially provide an administrative loophole for ICANN to restrict the free flow of information."<ref name="sunbelt">[https://www.dropbox.com/s/o7jd31k0z40fdoc/36_Abstracts.pdf?dl=0 International Sunbelt Social Network Conference 2016 - Abstracts Archive]</ref> Furthermore, her statistical p* models demonstrate that
 *# [[ICANN Organization]] considers lengthier submissions to be more likely to request contentious information and are more likely to apply DCND to them
 *# ICANN [[Stakeholder Groups]]/[[Working Group]]s are more likely to receive DCND in every condition category, except the "Affects Individual" condition
 *# "Burdensome conditions" are rarely imposed on [[:Category:Legal Practices|law firms]], which tend to request precise information about a specific case
 *# [[Registrant]]s are less likely to receive ICANN "Integrity" conditions as they are more concerned about their own domain name registrations than about ICANN
-*# "Confidential External Business Information" conditions are less likely to be imposed on the internet [[:Category:Non-Profit|non-profits]], as they are more interested in ICANN’s interface with [[Internet Governance]] than third-party business interests.<ref>[http://sunbelt2016.insna.org/wp-content/uploads/2016/04/2016-Sunbelt-Program_040516_FINAL_wchange-for-online.pdf International Sunbelt Social Network Conference 2016]</ref>
+*# "Confidential External Business Information" conditions are less likely to be imposed on the internet [[:Category:Non-Profit|non-profits]], as they are more interested in ICANN’s interface with [[Internet Governance]] than third-party business interests.<ref name="sunbelt" />
 * Indian stakeholders have cited difficulties in accessing documents under DIDP and asked for greater transparency.<ref>[https://www.ohchr.org/Documents/Issues/Expression/IntOrganizations/CCG_NLU.pdf Centre for Communication Governance at National Law University, Delhi Submission to the United Nations Special Rapporteur on Freedom of Speech and Expression: Study on Access to Information in International Organizations pg. 5]</ref>
 ** [[Padmini Baruah]], of [[The Centre for Internet and Society]], explains that ICANN deflects most requests for information, using clauses about internal processes, stakeholder discussions, protecting financial interests of third parties (cited in over 50% of the responses up to 2016) to avoid disclosing its [[Contractual Compliance]] audits and reports of abuse to [[registrar]]s. Baruah's complaint is that because ICANN regulates a global public good, it should be far more open.<ref name="baruah">[https://cis-india.org/internet-governance/blog/peering-behind-the-veil-of-icanns-didp-ii Padmini Baruah, Peering behind the veil of ICANN's DIDP (II), CIS-India]</ref> Baruah presented on this topic at an [[NCUC]] session during [[ICANN 55]], and [[George Sadowsky]] was invited to comment on her findings. He noted that there were some discrepancies between Baruah's assessments of the history of the DIDP mechanism and ICANN staff's assessment of the same history.<ref>[https://meetings.icann.org/en/marrakech55/schedule/tue-ncuc/transcript-ncuc-08mar16-en ICANN 55 Archive - Transcript, Non-Commercial Users Constituency Meeting], March 8, 2016 (starting at page 59) (PDF)</ref> Baruah subsequently submitted a DIDP request in an attempt to reconcile her analysis with that of ICANN staff. ICANN responded in part: