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ICANN Ordered To Open Books

The Internet Corporation for Assigned Names and Numbers (ICANN) has until Friday to cough up documents its been holding from one of its own directors, according to a summary judgment by the L.A. Superior Court Monday evening.

The ruling is vindication for Karl Auerbach, who has spent more than a year trying to gain access to ICANN's financial and confidential records. After repeated attempts to gain access to these materials since joining the ICANN board of directors in 2000, he filed a lawsuit against the organization in March.

However, what gets published to the general population is now in the court's hands; Judge Dzintra Janavs, the presiding judge, said the courts would determine what information Auerbach could release to the public and that he must review the documents at ICANN's headquarters in Marina Del Ray, Calif.

ICANN officials said they are considering an appeal, and will wait to read the written ruling (which won't be released until next week) before making a decision.

Michael Froomkin, in a post to his industry-watchdog site ICANNWatch.org, said the court's decision finally enforces common sense to an organization that is a private corporation in the state of California.

"ICANN has done a lot of things I thought were mistaken, some I thought were really stupid, and a few that I thought were downright nasty, but only one that appeared to defy all logic: spending thousands, probably tens of thousands, of dollars fighting to keep a member of the Board of Directors from seeing basic corporate documents," he wrote. "This outcome is not a great surprise, although it remains surprising that this case should have to be tried at all."

The courts rejected a summary judgment ruling filed by ICANN staffers at the same time Auerbach's ruling was announced. According to court documents, "there is no triable issue as to any material fact and (Auerbach) is entitled to judgment as a matter of law...respondent's motion for summary judgment is denied."

Auerbach's petition claimed ICANN arbitrarily decided not to release documents to him, despite the fact California law and ICANN by-laws entitled him to review any documents he chose.

Instead, he said, an ad hoc committee of ICANN staffers -- which included the audit committee, Louis Touton (ICANN legal counsel) and Stuart Lynn (ICANN president) -- threw obstacles in place to deny him access to records which he suspects show instances of abuse by ICANN directors and staffers, namely "excessive payments to disqualified persons," according to his Web blog.

ICANN has maintained Auerbach has always been free to visit ICANN's headquarters and review the documents during business hours -- after signing a confidentiality agreement to prevent him from publishing the contents of his findings.

ICANN officials view Auerbach's decision to go through the court system and "make decisions on behalf of ICANN without regard to the views of his fellow directors," as a reason for filing its own summary judgment with the L.A. Superior Court.

"ICANN is required to seek to protect the rights of the corporation from being abridged by the unilateral action of an individual director," said Mary Hewitt, an ICANN spokesperson. "It is unfortunate that ICANN's limited resources must be used for matters such as this, which do not advance the core mission of ICANN."