Accountability and Transparency Frameworks and Principles
Accountability in the Public Sphere
ICANN's Accountability and Transparency Frameworks and Principles were approved by the Board on 15 February 2008.
The full frameworks and principles are also available in PDF format:
http://www.icann.org/transparency/acct-trans-frameworks-principles-10jan08.pdf
Contents
- Overview
- Accountability in the Public Sphere
- Legal and Corporate accountability
- Accountability to the participating community
Accountability in the Public Sphere
Public sphere accountability is one important aspect of ICANN accountability, and is relevant to the extent that ICANN performs a public trust function. This form of accountability is similar in some ways to that which would apply to governments and government officials. The salient aspects of public sphere accountability for ICANN are that its processes are transparent, that it discloses information to its community, that there are mechanisms for the reconsideration of decisions and that there is a process of audit or evaluation to check that procedures have been followed and that standards have been upheld.
This section of the Management Operating Principles sets out:
- A. The ICANN Bylaw requirements for transparency
- B. An Information Disclosure Policy that will guide the provision of information concerning ICANN’s operational activity to the public
- C. Dispute Resolution Framework that outlines the mechanisms available for individuals who believe that they have not been treated fairly in their dealings with ICANN
- D. A statement of Financial Accountability that outlines the monitoring of financial viability and governance during the budget cycle; and the reporting mechanisms that ensure transparency of ICANN financial matters
- E. The external audit process by which ICANN’s performance in regard to accountability and transparency will be evaluated and reported on
A. COMMITMENTS TO TRANSPARENCY IN THE ICANN BYLAWS
ICANN’s bylaws are very clear about the need for ICANN to uphold the standards of transparency appropriate for an organization that operates in an environment of public trust. Indeed, ICANN’s Bylaws (http://www.icann.org/en/general/bylaws.htm#I) state that:
ICANN and its constituent bodies shall operate to the maximum extent feasible in an open and transparent manner and consistent with procedures designed to ensure fairness. (Article III, Section 1)
The Bylaws also state that in performing its mission, a set of core values should guide the decisions and actions of ICANN. These include:
7. Employing open and transparent policy development mechanisms that (i) promote well-informed decisions based on expert advice, and (ii) ensure that those entities most affected can assist in the policy development process.
8. Making decisions by applying documented policies neutrally and objectively, with integrity and fairness.
9. Acting with a speed that is responsive to the needs of the Internet while, as part of the decision-making process, obtaining informed input from those entities most affected.
10. Remaining accountable to the Internet community through mechanisms that enhance ICANN’s effectiveness.
(Article I, Section 2)
In addition, under the Bylaws if the Board is considering policies for adoption that substantially affect the operation of the Internet or third parties, including the imposition of any fees or charges, ICANN must:
- Provide public notice on its website explaining what policies are being considered for adoption and why, at least twenty-one days (and if practical, earlier) prior to any action by the Board.
- Provide a reasonable opportunity for parties to comment on the adoption of the proposed policies, to see the comments of others, and to reply to those comments prior to any action by the Board.
- In those cases where the policy affects public policy concerns, request the opinion of the Governmental Advisory Committee (GAC) and take into account any advice presented by the GAC on its own initiative or at the Board’s request.
- Where it is both practically feasible and consistent with the relevant policy development process, an in-person public forum also must be held for discussion of any proposed policies prior to any final Board action.
- After taking action on any policy subject undertaken through this process, the Board must publish in the meeting minutes the reasons for any action taken, the vote of each Director voting on the action, and the separate statement of any Director who chooses to publish such a statement.
B. ICANN DOCUMENTARY INFORMATION DISCLOSURE POLICY
- Documents Made Public in Due Course
- Responding to Information Requests
- Defined Conditions for Nondisclosure
- Appeal of Denials
ICANN’s Documentary Information Disclosure Policy (DIDP) is intended to ensure that information contained in documents concerning ICANN’s operational activities, and within ICANN’s possession, custody, or control, is made available to the public unless there is a compelling reason for confidentiality.
A principal element of ICANN’s approach to transparency and information disclosure is the identification of a comprehensive set of materials that ICANN makes available on its website as a matter of course.
Specifically, ICANN has:
- Identified many of the categories of documents that are already made public as a matter of due
course - Developed a time frame for responding to requests for information not already publicly available
- Identified specific conditions for nondisclosure of information
- Described the mechanism under which requestors may appeal a denial of disclosure
Documents Made Public in Due Course
ICANN posts on its website at www.icann.org, numerous categories of documents in due course. A list of those categories follows:
- Annual Reports: http://www.icann.org/en/annualreport/
- Articles of Incorporation: http://www.icann.org/en/general/articles.htm
- Board Meeting Transcripts, Minutes and Resolutions: http://www.icann.org/en/minutes/
- Budget: http://www.icann.org/en/general/financial.html
- Bylaws (current): http://www.icann.org/en/general/bylaws.htm
- Bylaws (archives): http://www.icann.org/en/general/archive-bylaws/
- Correspondence: http://www.icann.org/correspondence/
- Financial Information: http://www.icann.org/en/general/financial.html
- Litigation documents: http://www.icann.org/en/general/litigation.htm
- Major agreements: http://www.icann.org/en/general/agreements.htm
- Monthly Registry reports: http://www.icann.org/en/tlds/monthly-reports/
- Operating Plan: http://www.icann.org/en/planning/
- Policy documents: http://www.icann.org/en/general/policy.html
- Speeches, Presentations & Publications: http://www.icann.org/presentations/
- Strategic Plan: http://www.icann.org/en/planning/
- Material information relating to the Address Supporting Organization (ASO): http://aso.icann.org/docs/ including ASO policy documents, Regional Internet Registry (RIR) policy documents, guidelines and procedures, meeting agendas and minutes, presentations, routing statistics, and information regarding the RIRs
- Material information relating to the Generic Supporting Organization (GNSO): http://gnso.icann.org/ – including correspondence and presentations, council resolutions, requests for comments, draft documents, policies, reference documents (see http://gnso.icann.org/reference-documents.htm), and council administration documents (see http://gnso.icann.org/council/docs.shtml).
- Material information relating to the country code Names Supporting Organization (ccNSO): http://ccnso.icann.org – including meeting agendas, minutes, reports, and presentations
- Material information relating to the At Large Advisory Committee (ALAC): http://www.atlarge.icann.org/en/ – including correspondence, statements, and meeting minutes
- Material information relating to the Governmental Advisory Committee (GAC): http://gac.icann.org/ – including operating principles, gTLD principles, ccTLD principles, principles regarding gTLD Whois issues, communiqués, and meeting transcripts, and agendas
- Material information relating to the Root Server Advisory Committee (RSSAC): http://www.icann.org/en/committees/dns-root/ – including meeting minutes and information surrounding ongoing projects
- Material information relating to the Security and Stability Advisory Committee (SSAC): http://www.icann.org/en/committees/security/ – including its charter, various presentations, work plans, reports, and advisories
Responding to Information Requests
If a member of the public requests information not already publicly available, ICANN will respond, to the extent feasible, to reasonable requests within 30 calendar days of receipt of the request. If that time frame will not be met, ICANN will inform the requester in writing as to when a response will be provided, setting forth the reasons necessary for the extension of time to respond. If ICANN denies the information request, it will provide a written statement to the requestor identifying the reasons for the denial.
Defined Conditions for Nondisclosure
ICANN has identified the following set of conditions for the nondisclosure of information:
- Information provided by or to a government or international organization, or any form of recitation of such information, in the expectation that the information will be kept confidential and/or would or likely would materially prejudice ICANN’s relationship with that party.
- Internal information that, if disclosed, would or would be likely to compromise the integrity of ICANN’s deliberative and decision-making process by inhibiting the candid exchange of ideas and communications, including internal documents, memoranda, and other similar communications to or from ICANN Directors, ICANN Directors’ Advisors, ICANN staff, ICANN consultants, ICANN contractors, and ICANN agents.
- Information exchanged, prepared for, or derived from the deliberative and decision-making process between ICANN, its constituents, and/or other entities with which ICANN cooperates that, if disclosed, would or would be likely to compromise the integrity of the deliberative and decision-making process between and among ICANN, its constituents, and/or other entities with which ICANN cooperates by inhibiting the candid exchange of ideas and communications.
- Personnel, medical, contractual, remuneration, and similar records relating to an individual’s personal information, when the disclosure of such information would or likely would constitute an invasion of personal privacy, as well as proceedings of internal appeal mechanisms and investigations.
- Information provided to ICANN by a party that, if disclosed, would or would be likely to materially prejudice the commercial interests, financial interests, and/or competitive position of such party or was provided to ICANN pursuant to a nondisclosure agreement or nondisclosure provision within an agreement.
- Confidential business information and/or internal policies and procedures.
- Information that, if disclosed, would or would be likely to endanger the life, health, or safety of any individual or materially prejudice the administration of justice.
- Information subject to the attorney–client, attorney work product privilege, or any other applicable privilege, or disclosure of which might prejudice any internal, governmental, or legal investigation.
- Drafts of all correspondence, reports, documents, agreements, contracts, emails, or any other forms of communication.
- Information that relates in any way to the security and stability of the Internet, including the operation of the L Root or any changes, modifications, or additions to the root zone.
- Trade secrets and commercial and financial information not publicly disclosed by ICANN.
- Information requests: (i) which are not reasonable; (ii) which are excessive or overly burdensome; (iii) complying with which is not feasible; or (iv) are made with an abusive or vexatious purpose or by a vexatious or querulous individual.
Information that falls within any of the conditions set forth above may still be made public if ICANN determines, under the particular circumstances, that the public interest in disclosing the information outweighs the harm that may be caused by such disclosure. Further, ICANN reserves the right to deny disclosure of information under conditions not designated above if ICANN determines that the harm in disclosing the information outweighs the public interest in disclosing the information.
ICANN shall not be required to create or compile summaries of any documented information, and shall not be required to respond to requests seeking information that is already publicly available.
To the extent a requestor chooses to appeal a denial of information from ICANN, the requestor may follow the Reconsideration Request procedures or Independent Review procedures, to the extent either is applicable, as set forth in Article IV, Sections 2 and 3 of the ICANN Bylaws, which can be found at http://www.icann.org/general/bylaws.htm.
C. DISPUTE RESOLUTION MECHANISMS AT ICANN
- Disputes about process and fair treatment
- Disputes about outcomes of a decision process
- Ongoing review of dispute resolution mechanisms
There are two areas where ICANN has need for dispute resolution mechanisms.
- Parties may be in dispute with ICANN because they believe that due process has not been followed in arriving at a Board decision or because they believe that they have not been treated fairly in an ICANN process. The three part dispute resolution process that is available to members of the community is described in detail below in the section “Disputes about process and fair treatment”.
- Parties may be in dispute with ICANN because they disagree not with the process but with the outcome of an ICANN decision process. The current method for dealing with disputes such as this is through the court system or via arbitration if provided for under the terms of ICANN’s agreements. This approach is described in the section “Disputes about outcomes of a decision process”.
Disputes about process and fair treatment
ICANN has a three-part dispute resolution process available to members of the community who feel that they have not been dealt with fairly or who believe that due process has not been followed in a Board decision making process.
Members of the community may choose whichever of these schemes is most appropriate to their needs. Alternative dispute resolution approaches are provided and preferred because these are accountable, transparent and flexible methods for resolving disputes.
Board Reconsideration Committee
The Reconsideration Committee is the first formal appeal or dispute resolution channel. It is a permanent committee of the ICANN Board of Directors. The Reconsideration Committee may hear a demand for the reconsideration of any decision made by the Board or the organization at no cost to the complainant. The purpose of a Reconsideration Committee review is to check that the correct process has been followed by the Board in reaching its decision. It has the power to recommend to the Board appropriate changes, and may amend or overturn decisions that were not made by a vote of the Board as a whole. The activities and decisions of the committee are posted on the ICANN website.
The Reconsideration Committee consists of three members of the Board and it has the authority to:
- Evaluate requests for review or reconsideration
- Determine whether a stay of the contested action pending resolution of the request is
appropriate - Conduct whatever factual investigation is deemed appropriate
- Request additional written submissions from the affected party, or from other parties
- Make a recommendation to the ICANN Board of Directors on the merits of the request.
Independent Review Panel (IRP)
The IRP is the second formal dispute resolution mechanism. It is established in the ICANN Bylaws, and ICANN must cooperate with the IRP in providing documents or information. The IRP promotes accountability and transparency by allowing any person who is materially affected by an ICANN decision to access an outside third party who will review that act or decision. The IRP’s mandate is to review the actions,decisions, and inactions of the Board to determine whether they were consistent with the Articles of Incorporation and the Bylaws.
The IRP has the authority to:
- Request additional written submissions from the party seeking review, the Board, the Supporting Organizations, or from other parties.
- Declare whether an action or inaction of the Board was inconsistent with the Articles of Incorporation or Bylaws.
- Recommend that the Board stay any action or decision, or that the Board take any interim action, until such time as the Board reviews and acts upon the opinion of the IRP.
The IRP is operated by an international arbitration provider, the International Centre for Dispute Resolution (see http://www.adr.org/icdr). The steps for requesting an Independent Review Panel review have been set out simply and clearly on the ICANN website. The forms to initiate an IRP review can be found at http://www.icann.org/en/general/accountability_review.html. The IRP conducts much of its work online or by telephone in order to reduce costs and to make the process efficient and flexible to the complainant.
The Office of the Ombudsman is created in the ICANN Bylaws. The Ombudsman is an independent, impartial resource that allows community members an informal, cost-free mechanism to deal with perceived unfair decisions, actions, or inactions by the organization. Any person affected by an ICANN action, decision, or inaction may request an Ombudsman’s review. The Ombudsman has the power to investigate, and to make recommendations to the Board to improve or change policies, procedures, or actions; the Ombudsman does not have the power to order changes. The Ombudsman has the discretion to publish or not to publish findings and recommendations. Each year the Ombudsman produces an Annual Report that outlines the activities of the Office of the Ombudsman for that year. That report is published for distribution to interested parties and is also available on the ICANN website.
Disputes about outcomes of a decision process
The dispute resolution mechanisms described above have been designed to provide efficient and cost effective means by which members of the ICANN community can have complaints dealt with and have issues resolved. As described in greater detail in the sections below on the legal accountability, parties in dispute with ICANN may choose to use the court system to resolve their dispute or in extreme cases may use the mechanisms provided by the State of California for the resolution of issues with nonprofit public benefit corporations.
Ongoing review of dispute resolution mechanisms
ICANN strives to maintain the highest standards of accountability and transparency. An important aspect of this is the continuous improvement of the mechanisms for dealing with complaints and resolving issues within the ICANN community. As part of the regular round of reviews of all aspects of ICANN’s operations, the Board Governance Committee will implement reviews of the ICANN’s dispute resolution mechanisms to ensure that they meet the needs of the all members of the community to have complaints dealt with efficiently and effectively.
D. FINANCIAL ACCOUNTABILITY
Once the budget is approved by the Board, there are several checks and balances built into the ICANN financial accountability framework. The ICANN financial accounts are audited every year by an external auditor in compliance with the ICANN Bylaws. In addition, the ICANN Board has two committees that review ICANN’s financial affairs: the Finance Committee and the Audit Committee.
- Each year the ICANN accounts are audited by an independent external auditor. This is a Bylaws requirement which ICANN believes is good practice to ensure that financial management and governance are of the highest standard. The auditor reports to the Board Audit committee and report is made available for the community.
- The Finance Committee of the ICANN Board is responsible for consulting with the President on the annual budget process of the corporation; for reviewing and making recommendations on the annual budget submitted by the President; and for developing and recommending long-range financial objectives for the corporation. In consultation with the President, the Finance Committee may establish such budget tracking and reporting standards as are appropriate to the needs of the committee and the Board.
- The Audit Committee of the ICANN Board is responsible for recommending the selection of an independent external auditor each year to conduct a thorough audit of ICANN’s financial affairs; for receiving, reviewing, and forwarding to the Board the annual financial report of the independent external auditors; for publishing that report for public consumption; and for such other matters as may warrant its attention.
These committees meet regularly throughout the year to monitor the financial health of the organization and to check that high standards of financial accountability are being upheld.
There are two elements of reporting in the ICANN financial accountability framework: the audited financial accounts and the Annual Report.
- Within 120 days of the end of the fiscal year, the Audit Committee presents to the Board a final audited set of accounts for the year, along with an audit report that examines the standard of compliance with accounting standards.
- The final accounts are posted on the ICANN website for the information of the ICANN community.
- ICANN also publishes an Annual Report that details progress on the initiatives identified in the
Strategic and Operating Plans and in the budget. - It provides feedback to the community on achievements during the year.
E. ICANN’S ONGOING COMMITMENT TO THE HIGHEST STANDARDS OF TRANSPARENCY
ICANN is committed to very high standards accountability and transparency. In response to the recommendations of the One World Trust review, ICANN has undertaken to conduct an annual audit of standards of accountability and transparency, including an audit of the commitments made in these Management Operating Principles. This audit will be conducted by an external party and the results of the audit will be published in the Annual Report.
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