[NA-Discuss] omblog.icann.org

[Danny Younger]

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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