A crucial test of ICANN’s real commitment to openness

Update 19 Sep 11: ICANN has responded, as expected, on the last possible day of the DIDP request. And, unfortunately but also as expected, it has decided to go for obfuscation over openness. See the full response at the bottom of this post.


Despite a frequently stated commitment to transparency and accountability, anyone who spends longer than a month following ICANN realizes that the organization appears to go out of its way to keep its inner workings, thought processes and decision-making as opaque as possible.

Following a recent report (the ATRT) and a lot of external pressure, ICANN’s Board has agreed to implement a series of recommendations to improve its transparency and accountability. There are now two very big questions:

  1. Will ICANN’s staff actually implement the recommendations in a meaningful way?
  2. Will ICANN Board and staff look beyond the ATRT recommendations and recognize that they need to change the way they work to tackle the root cause of all the problems?

We continue to follow progress on point one (there is a ICANN webinar later this month specifically to talk about this). On point two, we have just put in a information request (DIDP in the parlance) that will demonstrate just how far ICANN is committed to actual openness.

Here is our contention behind the request:

  • ICANN’s CEO was effectively fired earlier this month when the Board decided not to renew his contract.
  • The Board held a special meeting sometime between 29 July and 16 August where it made that decision.
  • The CEO was not invited to that meeting – for obvious reasons.
  • Agreement was subsequently reached between the Board and CEO to allow him to say it was his decision so that everyone was able to save face.

Now, you may well argue that it is none of our business what happened and that we have no right to know the full details. One respected commentator has already argued exactly that. We happen to disagree, but that’s not the point to this post.

Whether or not you want to know, or even think it is important to know, if the CEO was fired or decided to leave, we would argue that everyone should know if the Board held a meeting where crucial decisions were made about the organization’s future. In this case: who the CEO and President of the organization would be. It is hard to imagine a more important topic.

However, according to the current Board meeting schedule, it met on 28 July and it is not scheduled to meet again until 25 August. On 17 August, a secretary’s notice talks about Board member transitions. There is no mention of any other Board meeting, committee or otherwise.

So we have asked ICANN formally:

Could you please supply: A list of any and all Board meetings, whether special meetings, Committee meetings or any other type of meeting that covered ICANN business and contained at least four Board members held between 29 July 2011 and 16 August 2011

Why the convoluted request? Because unfortunately one of ICANN’s worst habits is to find legalistic get-out clauses to providing just about any information that it has decided it doesn’t want you to know.

It is a certainty that ICANN will have its own definition of what constitutes a “Board meeting”, what is a “Special Board meeting”, what is a “Board Committee meeting” and it probably has no name for any other Board meetings, even though they happen on occasion.

ICANN has clearly decided it will not publish the fact that its Board members met to decide the fate of its CEO and so the meeting will have been given some kind of status – or no status - so they did not feel obliged to publish the meeting, its agenda or its minutes.

How to get out of stating the truth

As such ICANN’s legal team will consider one of the many DIDP non-disclosure conditions it has to explain that it does not have provide the information requested.

We would argue strongly – and we will do so through ICANN’s three review processes if necessary – that it has no right to not disclose the simple fact of having had a meeting because of the agenda or content of that meeting.

In fact, that would set an extremely dangerous precedent if you think about. The ICANN Board could meet and make decisions and never tell anyone it had done so because the discussion (in their eyes) didn’t fit within its information disclosure policy (that it decides).

Internally, it will be argued that the Board cannot possibly list every one of its meetings. In fact, it can and it should. It will be argued that it would impose an unnecessary burden. In fact, it won’t. It will be argued that people cannot possibly expect every meeting of Board members to go recorded. They don’t. But ones with more than four Board members, and ones where crucial decisions are made – yes, people can and do expect that. And the ATRT expects that too.

Another possible way of hiding the fact that the Board met and made a crucial organizational decision is if there weren’t any ICANN staff on the call. Or if certain ICANN staff weren’t on the call, such as the general counsel or someone in a formal minute-taking capacity.

This would also be a nonsense as the organization does not need to have a staff member present for the Board to make decisions. Our expectation would be that whomever looks at the DIDP request (most likely ICANN legal staff) asks its Board members if they held any meetings between 29 July and 16 August. The DIDP covers the organization, not just staff activities.

If we are told the staff is not aware of any meetings, our first question back will be to ask whether the staff asked Board members if they held any meetings.

We are sure there are also other ways of looking at this issue in order to pretend the Board didn’t meet and didn’t decide the fate of its CEO. But let’s assume that commonsense prevails and ICANN recognizes that it needs to at least admit that the Board met. What then?

And what happened?

This leads the remaining parts of our DIDP request:

Could you please supply:

  • The agenda of each and any of the meetings referred to above.
  • Details of any actions taken or formal resolutions reached at each and any of the meetings referred to above.
  • Minutes of each and any of the meetings referred to above.

Assuming ICANN decides to admit the Board met, will it actually tell anyone what it met about?

What of the Agenda? ICANN will most likely argue internally that there was no formal agenda. Because it was not a formal meeting. Kafkaesque or Catch-22, take your pick. You don’t get Board members from all over the world and in completely different timezones talking to one another without telling them what they are going to be talking about.

The agenda will have been sent out in an email, probably by the chairman, general counsel or Board secretariat. It may not have been written as a formal agenda but it is there in an email somewhere and most likely all the Board members have a copy of it. The question is: is ICANN willing to admit that the meeting it held concerned (possibly among other things) the extension or otherwise of its CEO’s contract.

Since we already know that the contract is not going to be extended, if ICANN refuses to acknowledge the fact it even discussed it, you have to wonder what other crucial decisions are made without anyone being informed that they are taking place.

Action stations

What about “actions taken or formal resolutions”. We seriously doubt any formal resolutions were made – why would they need to be? But “actions taken”? Internally, ICANN will again play semantics in deciding how not to release this information. What is an “action”? Was it actually “taken”? If the Board just “expressed an opinion” or “reached a general consensus” is ICANN obliged to tell anyone about it?

Again, we would argue that would set an intriguing precedent. It would mean Board members would have to formally request an action be noted or that a vote taken at every step if it was ever to be certain to be relayed to the outside world. That doesn’t sound very healthy to us.

And, lastly, minutes. Were minutes taken? Assuming the Board met and decided not to extend the contract of its CEO, you would think that is a meeting worth minuting. If ICANN didn’t minute the meeting, that in itself is troubling. What other crucial meetings are not being recorded?

If there are minutes, but ICANN has no intention of producing them, how does that fit in with its “guiding principles” for Board materials which states: “The following assumptions are to be applied: 1. Start with the presumption that all material will be posted…”

If it does run through that logic but decides for one of the many of the reasons it has available to redact the minutes, then it will need to explain under what rationale it has redacted the minutes. That should be a tortured process in itself.

Holes

Now we’re sure that a lawyer could pick any number of holes in the arguments and processes outlined above.

But ask yourself a question: should it really be the case that you have to provide a legally watertight argument in order to obtain crucial information from an organization that has in its bylaws that it will “operate to the maximum extent feasible in an open and transparent manner”?

And if we make it through?

But let’s just assume for a fun second that our DIDP request makes it through all of the barriers placed in its path and ICANN admits that: yes, we held a meeting that we didn’t tell anyone about; yes, at that meeting we discussed the CEO’s contract; and yes, we decided not to renew that contract.

Having chewed up hours of time and run through all sorts of deliberations and scenarios, the extraordinary truth will be finally be revealed... that what everyone already knows happened did in fact happen.

Surely it would be better for ICANN to do what everyone expects of it and simply tell people when it makes decisions, what they are and why it made them. That is why, to our eyes, this DIDP request is a crucial test of ICANN’s real commitment to openness.


Based on experience, we expect the answer to the DIDP request to arrive on 19 September – which will be exactly 30 calendar days after we sent it.

If ICANN does decide to reveal the fact it held a Board meeting where it discussed its CEO’s future, we would expect ICANN to post the details on its website a few days earlier so it can’t be said that the DIDP request forced the release of information. This has happened twice before in response to DIDP requests.

If ICANN is concerned about the release of the information, it will put out some kind of announcement fogging the issue, most likely on Friday 16 September around 5pm PST.

And if we are wrong about the above, the reason will have been this blog post. Not sure how we’d feel about that one.


19 September 2011 update

ICANN has responded. And, unfortunately, has gone for obfuscation over openness. Clearly the Board does not wish to admit that it held a secret meeting, especially after it purposefully hid it. And with the CEO now claiming that it was he that decided to leave the organization - his contract renewal was the subject for the secret Board meeting - ICANN clearly feels it has more to lose admitting the secret Board meeting than dragging out a request for information about it.

Here is the response:

As noted on the Board Meeting Minutes page at http://www.icann.org/en/minutes/, there were three meetings of committees of the ICANN Board during the time frame you reference above. The IANA Committee, Board Global Relationships Committee and the Board Governance Committee meeting minutes have been approved and are each available on the Board Meeting Minutes page. The Minutes reflect the agenda of each committee’s meeting, and also capture any action items or recommendations arising out each meeting.

ICANN has a long history of stalling requests that would cause embarrassment or highlight damaging information.

Edward Hasbrouck spent two years chasing ICANN for information over unusual decisions made over the dot-travel top-level domain; eventually he gave up. On the other hand, ICM Registry spent five years chasing ICANN over its decision to reject the dot-xxx top-level domain, before finally forcing the Board to admit it had got it wrong and to reverse its previous decision.

An independent review in that case found that ICANN had broken its own bylaws, and a panel of judges took the extraordinary step of saying it did not find ICANN's versions of events credible, dismissing the recollections of the then CEO and Chairman.

Our information request is primarily concerned with the fact that the ICANN Board feels it can hold a meeting and make crucial decisions about the organization's future, and then decide itself not to let anyone know about the meeting because it is not in its own interests to do so.

It is this attitude that we feel is the root cause of many of ICANN's transparency and accountability problems and so we will keep pushing in an effort to force the the organization to face its own failings.