That was exactly the agreement between Board officials and Frank, that he chose to break. Hence my suggestion to have any further exchange with the Ombudsman only at the presence of General Counsel. Cheers, Roberto

-----Original Message----- From: alac-bounces@atlarge-lists.icann.org [mailto:alac-bounces@atlarge-lists.icann.org] On Behalf Of Jacqueline A. Morris Sent: 06 June 2007 22:45 To: 'Danny Younger'; 'NA Discuss' Cc: 'At-Large Worldwide' Subject: Re: [At-Large] [NA-Discuss] omblog.icann.org

Dear All It is distressing that the Ombudsman has determined that he should publicly post selected contents of a confidential document sent by the ALAC to the Board during the determination of the reconsideration request, and forwarded to him as a courtesy, without consulting the principals in this communication with regard to the disclosure of the confidential document. The process is before the Board and the ALAC awaits their recommendation. As such, I believe that it is not proper to engage the issue in public fora until a decision is made by the Board. Sincerely Jacqueline A. Morris ALAC Chair

-----Original Message----- From: Danny Younger [mailto:dannyyounger@yahoo.com] Sent: Wednesday, June 06, 2007 2:53 PM To: NA Discuss Cc: At-Large Worldwide Subject: [NA-Discuss] omblog.icann.org

June 5, 2007

Why does it take longer to consider conflict resolution than it would have to re-apply for status?

Filed under: Uncategorized, cases and findings - Frank Fowlie @ 1:03 pm

I remain concerned that the handling of the file 06-317 remains inadequate. ALAC was in possession of my report for 85 days before making a reply to the Board for their consideration. This left the Board with 3 working days to deliberate and comment on my recommendations, consistent with the Ombudsman Framework.

The Ombudsman Framework states:

Where a recommendation has been made to the Board of Directors, the Board of Directors shall respond to the Ombudsman within 60 days following their next Board meeting following a recommendation.

I have raised a number of concerns with the ALAC reply, as it would appear that a number of the responses, or criticisms of my report, are factually inaccurate. I have urged the ALAC to reconsider these, and to retract their report to correct these errors, but to date, they have declined to do so. In order to make sure that the Board has the best information before them, I am taking the liberty of responding to points that ALAC has made in its reply, which, at your discretion, you may or may not use to update that reply.

ALAC Reply page 1, Item 4. The Ombudsman's interaction with the Committee was marked by misunderstanding on both sides with regard to the roles and responsibilities of the respective offices, leading to some acrimonious exchanges. This is regrettable, and we suggest that the Ombudsman's office provide a "Dummies guide to the Ombudsman" that explains the role, powers and processes. It is clear from the long interaction with the ALAC that the position of "Ombudsman" does not have meaning in certain other cultures, and ICANN and the Ombudsman should take a proactive role in explaining this concept to those who may not understand it.

Ombudsman's comment: I would point out that I have provided a number of orientations to ALAC, and I volunteer to attend each and every ALAC meeting conducted at the ICANN Meetings. I note that the Ombudsman Webpages provides basic information about the Office, and Annual Reports in English, German, Spanish, Chinese, French and Arabic. For the last several ICANN meetings a six language multi-lingual brochure on the Office of the Ombudsman is available with all other ICANN print information. I believe that this would constitute the "Ombudsman for Dummies" information that you reference. You may wish to modify or remove that bullet in light of this information.

ALAC Reply page 1, item 5. We wish to discuss charge of negligence against the ALAC with respect to the process for referral to the Ombudsman's office. If giving the email contact for the Ombudsman was not sufficient, and if a standard set of information is to be sent to applicants who wish review, this information should have been provided to the ALAC when the position of Ombudsman was introduced to the ICANN community. It is clear from the extract of the email correspondence quoted that this process was not adequately explained to the ALAC. While ignorance is not a defense, it can be used to show lack of malice in the failure to comply.

Ombudsman's comment: The issue with respect to the negligence in this matter is not related to the provision of the Ombudsman email address to the complainant, but that to the fact that once the complainant wrote to the ALAC demanding an Ombudsman review, that nothing was done to facilitate the initiation of a complaint by the Office of the Ombudsman, nor to further inform the complainant to of how to access Ombudsman services. Rather, the applicant asked ALAC for an Ombudsman review on October 5, 2006, and on November 22, 2006, ALAC then provided an email address for my Office. In this 6 week gap, ALAC did not inform my Office of the requested review, nor did it advise the complainant of any method to contact my Office. Neither did ALAC simply contact my Office to ask what to do. I note that my Office has provided orientation to the three ALAC staff members over time, and has oriented ALAC on a number of instances. The Office of the Ombudsman does not allege any malicious intent or action on behalf of the ALAC. Negligent is a technical term meaning that something was not done which should have been done. It does not infer malice. Again, you may wish to modify or remove that bullet in light of this information.

ALAC Reply page 2, Item 8. We are unclear as to the "quick fix" mentioned in the report.

Ombudsman's comment: The "quick fix" was the suggestion circulated at or around November 22, that the ALAC could reconsider their vote. PDF of this email chain attached.

ALAC Reply page 2, item 9. The Ombudsman's office needs to apply its own respect for diversity in setting deadlines with respect to requests for action and information. The ALAC and its constituency consists of volunteers from many countries and many cultures. This means that in some parts of the world, business shuts down for holidays that do not correspond to North American ones. It is incumbent on the Ombudsman's office to consider these cultural differences in setting deadlines. Just as one would not expect a US business to respond over the Thanksgiving holiday, one cannot expect a German to respond over the long Christmas holidays, the Easter holidays etc, nor a Brasilian to respond over Carnival. The ALAC does take these into consideration, and sometimes this makes our response time longer, but it is important. Also, the Ombudsman must consider that English is not the first language for the majority of the ALAC and its constituency. In this case, misunderstandings may occur, and additional care must be taken to avoid jumping to a wrong conclusion based on a simple difficulty of language.

Ombudsman's comment: Whilst I understand and empathize with your argument; I must respectfully point out that there is a substantial difference between trying to "cold call" a person to have a conversation during a holiday period, and actually having a conversation at a time and date pre-arranged by participants. Factually, the latter was the case in attempting to speak with your predecessor. I attach a half dozen emails between us from the relevant time period which show those efforts. I point out again the efforts of this Office to diminish linguistic challenges; from multi-lingual documents, to the reception of complaints in any language, with translation conducted through my Office. I would note that the latter was as a suggestion of the ALAC. Finally, I would also remind you that with respect to this file, that I have previously offered to receive communication from any ALAC member in any language, and then conduct translations. Again, you may wish to modify or remove that bullet in light of this information. In general, while it is not my intent to look at the substantive matter of the ALAC deliberations, I remain concerned that there may be a lack of predictability with the ALS certification process. In the application of an administrative process it should be predictable that persons or entities applying for a benefit or privilege should expect to receive the same response, with all things being equal in the application. In the case of ******, the application was rejected as ******* was considered to be an organization of organizations; rather than an organization of individuals. I note that, in the interim, applications 81, 87, 91, and 95, which all appear to meta organizations, have been approved by the ALAC.

On an administrative process view, the delays in considering my recommendations have now far exceed the 90 day time frame that ALAC promises to process ALS applications in. Therefore, it would have been less time consuming for the applicant to have reapplied for ALS status anew, than the time that it has taken to create an administrative response to my recommendations; which remains outstanding.

I would note that in the interim that what appear to be four other "meta" organizations (organizations made up of organizations) have been approved by ALAC, and that this was the primary reason that the applicant in 06-317 was rejected.

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_______________________________________________ ALAC mailing list ALAC@atlarge-lists.icann.org http://atlarge-lists.icann.org/mailman/listinfo/alac_atlarge-l ists.icann.org

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It is distressing that the Ombudsman has determined that he should publicly post selected contents of a confidential document sent by the ALAC to the Board during the determination of the reconsideration request, and forwarded to him as a courtesy, without consulting the principals in this communication with regard to the disclosure of the confidential document.

Before one can make comment on such an issue, I'd like to know more about why the document was confidential in the first place. Personally, I would always applaud the act of an Ombudsman who helped the public to know information which was falsely or needlessly classified as confidential. Indeed, one could easily argue that this kind of activity is specifically within the mandate of someone in that role. For ICANN, openness is an obligation, not a courtesy. We who are in advisory capacities, in the ALS/RALO process, need honest and open access, so that we can best serve in our roles. GIGO. OTOH, whose interests are served by secrecy? The public's? How can ICANN claim to represent the public interest when the public doesn't know the bases upon which its Board makes its decisions? How can its advisory processes work properly -- or even be claimed to do so -- if not offered complete access to relevant resources and information? I take to heart John's comments about the existing Ombusman's behaviour, yet I have a hard time understanding the specific complaints here. Specifically, I an concerned with the issue of "exposing" public information that perhaps should have been public in the first place. I have a hard time understanding why _any_ of ALAC's communications -- especially Board recommendations -- would be confidential. If full disclosure exists, then issues such as "taking out of context" and misleading interpretations can be appropriately answered. Without full disclosure, the "unknowing" must judge the conflicting words of others who have been blessed with the whole picture. And in a highly-politicized, highly-lobbied environment such as ICANN, I suspect that those with appropriate funds and initiatives already know most of the "secrets" witheld from the rest of us. Indeed, I can understand how a Ombudman -- charged to protect the public interest -- could easily become a position of confrontation if constantly coming in contact with elements -- even supposedly public-interest advocacy elements such as ALAC -- who choose secrecy over transparency. I'm obviously inexpereienced in specific dealings at this time, and don't know the person. However, I can understand how the nature of such a role could unfortunately lead to hostility and mistrust, even when started with the best of intentions. I have a hard time heeding John's request to reject any requests or demands of the Ombudman out of hand. Personally, I would judge any specific request on its merits, but I would not offer any information to the Ombudsman that I would not be prepared to publish. Berhaps there would be less opportunity for "disgraceful ways" if more of ICANN was open to public view in the first place and its people acted accordingly. The more one thinks about the role of ICANN, the less one understands the need for *any* secrecy in its operations (with the possible exceptions of negotiations with staff and business interests).

The process is before the Board and the ALAC awaits their recommendation. As such, I believe that it is not proper to engage the issue in public fora until a decision is made by the Board.

I must humbly, yet emphatically, disagree. Now -- BEFORE the Board has made a decision -- is the _best_ time to bring new issues forward if relevant. Else, what's the point of debating the issue once it's already been decided? - Evan

Basically, the Ombudsman has said on many occasions when ALAC members have publicized information related to the investigation and process that ALL the communications were confidential, and he actually took the ALAC to task in the report under discussion for breaking such confidentiality. Therefore, in order to meet the previous demands of confidentiality made by the ombudsman with regard to this investigation, we have agreed to keep the documents relating to the investigation confidential - which is actually against our preferred way of working. If he says that we can publish (he is the person who determines, according to previous correspondence) then I'd certainly publish ALL the emails, reports and discussions that have taken place over the past 6+ months of this investigation. My main problem is that parts are published selectively. Either the whole thing is published or none. Jacqueline -----Original Message----- From: Evan Leibovitch [mailto:evan@telly.org] Sent: Thursday, June 07, 2007 10:51 AM To: NA Discuss Subject: [NA-Discuss] GIGO (was Re: omblog.icann.org)

It is distressing that the Ombudsman has determined that he should publicly post selected contents of a confidential document sent by the ALAC to the Board during the determination of the reconsideration request, and forwarded to him as a courtesy, without consulting the principals in this communication with regard to the disclosure of the confidential document.

Before one can make comment on such an issue, I'd like to know more about why the document was confidential in the first place. Personally, I would always applaud the act of an Ombudsman who helped the public to know information which was falsely or needlessly classified as confidential. Indeed, one could easily argue that this kind of activity is specifically within the mandate of someone in that role. For ICANN, openness is an obligation, not a courtesy. We who are in advisory capacities, in the ALS/RALO process, need honest and open access, so that we can best serve in our roles. GIGO. OTOH, whose interests are served by secrecy? The public's? How can ICANN claim to represent the public interest when the public doesn't know the bases upon which its Board makes its decisions? How can its advisory processes work properly -- or even be claimed to do so -- if not offered complete access to relevant resources and information? I take to heart John's comments about the existing Ombusman's behaviour, yet I have a hard time understanding the specific complaints here. Specifically, I an concerned with the issue of "exposing" public information that perhaps should have been public in the first place. I have a hard time understanding why _any_ of ALAC's communications -- especially Board recommendations -- would be confidential. If full disclosure exists, then issues such as "taking out of context" and misleading interpretations can be appropriately answered. Without full disclosure, the "unknowing" must judge the conflicting words of others who have been blessed with the whole picture. And in a highly-politicized, highly-lobbied environment such as ICANN, I suspect that those with appropriate funds and initiatives already know most of the "secrets" witheld from the rest of us. Indeed, I can understand how a Ombudman -- charged to protect the public interest -- could easily become a position of confrontation if constantly coming in contact with elements -- even supposedly public-interest advocacy elements such as ALAC -- who choose secrecy over transparency. I'm obviously inexpereienced in specific dealings at this time, and don't know the person. However, I can understand how the nature of such a role could unfortunately lead to hostility and mistrust, even when started with the best of intentions. I have a hard time heeding John's request to reject any requests or demands of the Ombudman out of hand. Personally, I would judge any specific request on its merits, but I would not offer any information to the Ombudsman that I would not be prepared to publish. Berhaps there would be less opportunity for "disgraceful ways" if more of ICANN was open to public view in the first place and its people acted accordingly. The more one thinks about the role of ICANN, the less one understands the need for *any* secrecy in its operations (with the possible exceptions of negotiations with staff and business interests).

The process is before the Board and the ALAC awaits their recommendation. As such, I believe that it is not proper to engage the issue in public fora until a decision is made by the Board.

I must humbly, yet emphatically, disagree. Now -- BEFORE the Board has made a decision -- is the _best_ time to bring new issues forward if relevant. Else, what's the point of debating the issue once it's already been decided? - Evan _______________________________________________ NA-Discuss mailing list NA-Discuss@atlarge-lists.icann.org http://atlarge-lists.icann.org/mailman/listinfo/na-discuss_atlarge-lists.ica nn.org --- Draft MoU with ICANN: http://www.icannwiki.org/NA_RALO_MOU Draft Operating Principles: http://www.icannwiki.org/NA_RALO_OP Draft Code of Conduct: http://www.icannwiki.org/NARALO_Code_of_Conduct No virus found in this incoming message. Checked by AVG Free Edition. Version: 7.5.472 / Virus Database: 269.8.11/837 - Release Date: 6/6/2007 2:03 PM No virus found in this outgoing message. Checked by AVG Free Edition. Version: 7.5.472 / Virus Database: 269.8.11/837 - Release Date: 6/6/2007 2:03 PM