Continued BoD delinquency in disclosure of documents

Board Discuss
#1

Hello board and fellow trustees,

I sent you a message (and a copy here in a comment) nearly a month ago, with not even a peep for a reply. Let me now post this as a stand-alone discussion topic.

As we all know, many documents generated in and by the TDF are generally public, and must be made accessible to the public. The body tasked with implementing this disclosure is the Board of Directors. Thus say our statutes:

§8(3) The Board of Directors shall assure public knowledge through express publication in a commonly used media outlet with regard to: … c.) the processes, discussions and decisions of the foundation, its committees, the Board of Directors and any Executive Directors, including minutes of meetings.

None of these document can be classified as “private”, or “for the board’s eyes only”. The only possible exception to the rule are explicit publication embargoes. Continuing from the same point in the statutes:

In exceptional cases, these may be treated as confidential, if so required. The resulting decisions shall be made transparently in a timely manner, and the confidentiality pertaining thereto shall end once the need for confidentiality has been resolved;

Without such a decision about a document of the kinds described above - it must be published, and actively avoiding its publication, or redacting it etc. is a willful breach of the statutes, and of the trustees, well, trust. It is unacceptable.

As we all know, the past BoD (and possibly some boards before it) have massively, repeatedly, continuously, and flagrantly broken their statutory disclosure obligations. It almost seemed like they adopted the opposite of the statutes: Everything is confidential, forever, and without any decision; and the exception is a disclosure.

With the current board assuming office, I (and hopefully others) have requested, or rather demanded, that the new board stop adding more undisclosed documents to the huge pile, by changing the custom from this point on; and devote time to work out a gradual process of disclosure of all past undisclosed materials, with perhaps a few exceptions (emphasis on exceptional, not the rule).

Unfortunately, it seems this is not happening. We have not heard anything from the board regarding disclosure, and worse than that - it seems the board is again creating disclosure-obligated documents, and keeping them confidential, indefinitely, with no specific decision to do so. We saw this in the agenda for the first board session, which apparently discussed “papers and proposed motions” (for agenda items other than C3) and more outrageously, an item (C1) which was described as “Private as it concerns a commercial/legal matter”. It is not a private matter, it is a public matter, like all foundation matters. With no decision to keep it temporarily confidential, for some exceptional reason (and “concerning a commercial/legal matter” is not an exceptional reason) - the declaration of items being “private” is essentially the board sticking its tongue out at us, taunting us, saying “Hah hah, you’re never going to see the documents we work on!”

I don’t appreciate being mocked this way. Now, it’s true that I have no central capacity in the foundation; and it’s pretty easy to ignore me, and others who expect the foundation to adhere to the transparency it is obligated to. But, well, let’s say that presuming impunity and ignoring complaints regarding inappropriate conduct has not been a winning strategy for the previous board, and Dai L-Hakima Birmiza.

#2

I am not aware of any concluded matter of the current Board that has not been published, apart from the formal minutes of the Board meeting of March 11 which were approved in a vote that closed late last week and which Florian will post when he is back tomorrow. Relevant papers were transcribed here in advance of approval of the minutes (e.g. here).

#3

@webmink: I’ll take back what I’ve said about the first session - if you can verify that all preparatory documents for it have been disclosed, except those which regard personal employee affairs. It seems this is not the case, as the (C1) invoice itself has not been disclosed.

But the BoD session is just one activity. Has the TDF, since the current board has assumed office, not conducted any internal processes involving a written document? And in particular, has not had any incoming or outgoing correspondence with any entity beyond that invoice? Have TDF employees or office holders held no discussions on any non-personal matter other than during the single BoD session (and the design meetings whose agenda and session minutes do get promptly and diligently published)? Those activities, processes, discussions, documents (including correspondence) must be disclosed.

#4

Hi Eyal,

you have been advocating absolute transparency before, and IIRC the answers you were provided (from members of both former and current board) tried to explain that the statutes do not mandate this. Beyond the fact, that other laws and regulations might trump anything written there (just like constitutional law overrides regular law), it is of course the prerogative of boards, to declare matters private - if deemed necessary.

I’m not quite sure what to make of your last paragraph, but what I’ve witnessed in the last board, was rather the opposite of people presuming impunity. It is unclear where your feelings of being mocked stem from - since, as outlined, at best the statutes are pretty clear, and you just keep insisting they mean something else.

As Simon outlines, the one thing that must always be published, are decisions (aka concluded matters). And that seems to happen.

Best, Thorsten

#5
  1. I’m quoting the literal statutes. Calling that “advocacy” is disingenuous.
  2. I have not been provided “answers”.

If by “private” matters you mean matters which only the trustees are privy to, then - perhaps you’re right. But the massive delinquency in disclosure is vis-a-vis the trustees as well as the public.

If you mean the board has power to declare almost all foundation matters private-to-the-board because “it deems it necessary” - I rather doubt this. Not because of my familiarity with German law, but because I doubt that the statutes would have been written to say the opposite of what the law mandates.

You and the rest of the last board withheld large amounts of documents from the trustees without ever deciding they are to be withheld. In fact, you’re still withholding them, since your duties related to your term on the board does not disappear because the term is up. In my book you are still deepening your violation of the statutes every passing day by failing to disclose those documents copies of which you are still in possession of.

(And yes, that goes for @PaoloVecchi and @syntaxerrormmm as well, not just members of the former BoD-coalition. Disclose all relevant documents immediately please.)

#6

HI Eyal,

Your use of strong words (delinquency, disingenuous etc) does not seem to match the realities on the ground. You have earlier requested to see any and all incoming and outgoing correspondence, and other minute details such as contents of staff meetings. I stand by my earlier labelling of this as advocating for absolute transparency, and by my answer that at least all previous boards would disagree with your reading of the statutes on mandating that.

You could try to lobby the current board to change established practices, though from past experience with organisations practicing absolute transparency, that might do more harm than good.

Best, Thorsten

#7

delinquency: “failure in or neglect of duty or obligation; dereliction; default” - that’s the exact term for the behavior I described.

Regardless of my vocabulary choices, though - the statutory obligation stands. The discharge of my own duties as a trustee is obstructed by this denial of access to information. I was hoping that with the change of composition of the BoD we would no longer be kept in the dark about the goings-on at the TDF, but it seems so far as if I was mistaken.

#8

It seems that established practices have moved far away from the binding German version of § 8 (3) c.) of the statutes of The Document Foundation:

Der Vorstand sichert durch eine ausdrückliche Veröffentlichung in einem gemeinhin genutzten Medium die öffentliche Kenntnis über: die Abläufe, Diskussionen und Entscheidungen der Stiftung, ihrer Ausschüsse, des Vorstands sowie etwaiger Geschäftsführer einschließlich der Sitzungsprotokolle. In Ausnahmefällen können diese vertraulich gehalten werden, wenn die Angelegenheit dies erfordert. Die daraus erwachsenen Entscheidungen müssen zeitnah transparent gemacht werden, die Vertraulichkeit endet nach Wegfall des Vertraulichkeitsbedürfnisses;

You are welcome to translate the text into your preferred language, but please note that the authoritative edition of the German text applies.

#9

I don’t speak German, but from what I can make out myself (+ machine translation), this seems to be pretty close to the English version I quoted from… @S.t.e.p.h : Does your reading the German text differ from the English? Specifically, w.r.t. the extent of the obligation to disclose?

#10

Hi Eyal,

As I am not a certified translator, I do not want to judge whether a particular translation of the binding German text is correct or the best fit.

My personal reading and my strictly personal translation of the two core statements into English:
The board ensures public knowledge [of …] through explicit publication. In exceptional cases, these may be kept confidential if the matter requires it.

Please allow me to refer once again to the only binding German version of the respective text.

#11

Ok, fair enough, but other than your (valid) technical point - your reading/translation seems to agree with my claim, that most foundation affairs are to be public in the sense of the relevant documents being made publicly available. It’s not just board decisions, or board minutes and decisions - it’s basically the majority of documents generated as part of the foundation’s work.

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