Hypothesis of problem

The AOC in recommendation 9.1 requires an ongoing assessment of various aspects of ICANN transparency. Full transparency requires an ability for Employees to safely report irregualties in a safe and reliable manner.  While ICANN has a hotline that is meant to serve the wistleblowing activities, evidence does not indicate that this program has been used effectively.      

 Background research undertaken

While ATRT1 did not make any specific recommendations on a maner in which continual assesment could be done, previous consultants reports, contracted by ICANN, did include suggestions

From the One World Trust 2007 Report

Transparency refers to the provision of accessible and timely information to stakeholders. Reporting and disclosure systems and processes that enable information sharing are central to an accountable organisation. Examples include an information disclosure policy, audited accounts and annual reports. Transparency mechanisms need to be based on the principle of presumption of disclosure, i.e. all information will be made available in the absence of a narrowly defined set of conditions for non-disclosure.

31. To ensure compliance with any organisational policy, it is important that there is high level oversight and leadership. Without this, implementation will only ever be piecemeal. To ensure implementation of the information disclosure within ICANN therefore, responsibility for overseeing the policy should be assigned to a senior manager

32. Supporting this, a set of indicators should be developed to monitor the implementation of the policy, and an annual review should be undertaken which identifies how ICANN is complying with the policy, where there are problems, and the steps that are to going be taken to address these (see recommendation 5.1 in section 8.) Recommendation 1.3: ICANN should consider assigning responsibility for overseeing organisation-wide compliance with the Information Disclosure Policy to a publicly named senior manager; and making publicly available an annual review that documents compliance with the policy.

100. While ICANN has three mechanisms for investigating complaints from members of the ICANN community, the organisation does not have a policy or system in place that provides staff with channels through which they can raise complaints in confidentiality and without fear of retaliation. Having such a policy (often referred to as a whistleblower policy) is good practice among global organisations. A whistleblower policy that provides such protections serves as an important means of ensuring accountability to staff as well as preventing fraudulent behaviour, misconduct and corruption within an organisation.

 Recommendation 4.2: ICANN should consider implementing processes that act as deterrents to abuses of power and misconduct which would protect staff who might want to raise such instances. Specifically, ICANN should consider developing a whistleblower policy that enables staff to raise concerns in a confidential manner and without fear of retaliation; and developing appropriate systems to foster compliance (see Appendix 5 for examples of good practice).

134. While the Ombudsman, Reconsideration Committee and the Independent Review Panel provide complaints based approaches to compliance, to generate greater trust among stakeholder, ICANN needs to take a more proactive approach. 

135. To address this issue, ICANN should consider a regular independent audit of their compliance with accountability and transparency commitments. Alternatively, it could develop a permanent compliance function to emphasize prevention by identifying shortcomings as they emerge and before they become systemic problems. In either case, a regular report on compliance should be produced and publicly disseminated.

136. For either approaches, independence should also be ensured. Global organisations such as the International Finance Corporation have addressed this issue by locating their audit/compliance function in the office of the Ombudsman. Recommendation 5.1: ICANN should consider having an independent report produced, perhaps annually, that would measure the organisation’s compliance with transparency and accountability commitments made in its By-Laws.

From the Berkman Report to ATRT

Berkman in Section 2.4 of their report, recommends that ICANN follow the recommendations of the One World Trust in carrying out a yearly transparency audit that would be published  as part of the annual review.  

 2.4 Transparency Audit

 (a) Issues

The lack of a comprehensive audit of ICANN’s information activities makes it difficult to assess its practices across active, passive, and participatory transparency.

(b) Observations

The 2007 One World Trust review describes an ICANN initiative “to conduct an annual audit of standards of accountability and transparency, including an audit of the commitments made in these Management Operating Principles . . . by an external party” with the results of the audit “published in the Annual Report.”xxxv The last annual report does not contain such an audit.

(c) Discussion

ICANN currently lacks an up-to-date, publicly available transparency audit. This makes it difficult to make substantive assessments of ICANN’s practices as they relate to active, passive, and participatory transparency. The lack of empirical material (e.g., on the time delays in the publication of documents) currently forces reviewers to look for conceptual, structural, and procedural deficiencies in order to identify if, where, and how there are inconsistencies between guiding policies and practices. A comprehensive audit, in contrast, would allow for periodic, facts-based, internal and external reviewing and benchmarking; ICANN could greatly benefit from this when further improving its information policies.

Such a transparency audit needs to be governed by clear policies and processes, which set forth the categories of information pertinent to such an audit, among other things. Following an earlier recommendation by the One World Trust review, the transparency audit should be published in the Annual Report. In addition, the Berkman team suggests that the underlying data be released as part of the Dashboard/ICANN Performance Metrics.xxxvi Accountability and Transparency at ICANN: An Independent Review {99}

(d) Recommendation

Create and implement policies and processes for conducting and communicating regular transparency audits.

ICANN response to the OWT report and the Board decision:

ICANN's response in June 2007 was uncategorical: "A whistleblower policy will be developed by General Counsel that outlines ICANN’s local obligations under law as well as a statement of principle to develop a uniform approach across ICANN offices." (Point 4.2: http://www.icann.org/en/transparency/mop-update-07jun07.htm)

Summary of ICANN input

When requested ICANN provided redacted documentation on the Employee Hotline.

Summary of community input via the public comment process and face to face meetings

Summary of other relevant research

It appears that since the begining of the program there has been only 1 report to the Hotline. (this needs confirmation)

There is also evidence that there have been employee reports of problems that have not been reported to the hotline.

  • Public statements by ex-employees made at the Public forum on the climate of fear the exists among much of the staff

  • Private statements made to the ATRT2 confidentially that indicate that the climate of fear main still persists and that reports of problem to the senior management can result in disciplinary action that may include dismissal.  It was not the ATRT2's roles to investigate these confidential issues in detail, but they offer evidence that there are problems that are not being dealt with in a transparent manner.

  • There has been no public reporting on such issues as recommended by Berkman or OWT.

While the Ombudsman’s charter does not currently include employee issues, discussions with the Ombudsman indicated that the current ombudsman sees a role for the office in dealing with such issues.  Not only are the ICANN employees members of the ICANN comunity, but their issues, especially when related to functioning of ICANN in relation to ICANN processes and procedures are relevant to the Ombudsman’s yearly report on the state of stakeholder issues with ICANN.

 Relevant ICANN bylaws

  • Article V Sections 2,3 Ombudsman charter and Operations

Relevant ICANN published policies

  • ICANN has not published its employee transparency/whistleblowing policy outside of the email sent to the ATRT2.
  • The degree to which the policies are published and available to employees is discussed in the staff email to the ATRT2.  No independent confirmation has been obtained to date.

Relevant ICANN published procedures

ATRT2 analysis

It is apparent that current processes and procedures are not effective.  Several confidential conversations by several members of the ATRT2 confirm reports of:

  • Employees being unwilling for fear of retribution to use the current hotline to report problems
  • Serious accusation of improprieties that have never been made nor vetted and acted upon.
  • A continuing culture of fear in several departments at ICANN.

Draft recommendation

  • Improvement to be made to employee whistle-blowing process to meet the best practices for transparency. 
  • Special attention to be paid to employee protection.
  • Processes for ICANN employee transparency and whistleblowing to be made public
  • Information on whistleblower program to be include in anual Transparency report (Recommendation 35), including:
    • Results of annual whistleblower audit
    • Basic Metrics including:
      • Reports submitted
      • Reports verified as contaiing issues requiring action
      • Reports that resulted in change to ICANN practices

Public Comment on Draft Recommendations

 

Final recommendation

 


 

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