Decision writing and statement of reasons

Under the Right to Information Act 2009 (Qld) (RTI Act) and Information Privacy Act (Qld) (IP Act) a decision maker is required to provide a statement of reasons for their decision.  A statement of reasons is intended to explain to an applicant or a consulted third party how the decision was made.  Writing good statements of reasons is a fundamental aspect of good decision making.  This guideline has been developed to assist decision makers to make reasoned and consistent decisions

Why provide a statement of reasons?

A statement of reasons:

  • clarifies the decision maker’s thinking by requiring them to express the basis for their decision
  • provides transparency
  • allows those affected to understand the factors taken into account by the decision maker; and
  • enables affected persons to relevant identify grounds of appeal if they decide to exercise their review rights.

The RTI and IP Acts require decision makers to provide:1

  • a prescribed written notice for certain decisions made in relation to access and amendment applications; and
  • additional reasons to be included in notice of a decision made on access applications.

Other statutory obligations include:

  • section 27B of the Acts Interpretation Act 1954 (Qld), which sets out the information that should be included in a statement of reasons; and
  • section 32 of the Judicial Review Act 1991 (Qld), which allows a person to request a written statement of reasons for certain administrative decisions.

What decisions require a statement of reasons?

Most decisions made under the RTI and IP Acts require a prescribed written notice2 which will contain a statement of reasons.  Some examples are:

  • decisions on access application3decisions that an application is outside the scope of the Act;4 and
  • decisions to a third party where the decision is contrary to the views of the third party.5

Decision makers must take into account the particular terms and requirements of the section under which they are making a decision.

Tip

When developing a statement of reasons for a decision under the RTI or IP Acts, decision makers could consider using subsections (a)-(e) of section 191 of the RTI Act or section 199 of the IP Act, as headings. This will help the statement of reasons to flow logically and ensure that none of the requirements are missed.

Statements of reasons - content

The statement of reasons must include:

  • a clear statement of the decision being made
  • the reasons for the decision
  • the disclosure log requirements7
  • the day on which the decision is made
  • the name, designation and delegation of decision maker
  • any rights of review8
  • a description of searches conducted and documents found;9 and
  • any relevant legislation and case law.

Acts Interpretation Act requirements

The Acts Interpretation Act 1954 (Qld)10 requires a statement of reasons to:

  • set out the findings on material questions of fact; and
  • refer to the evidence or other material on which those findings are based.

What is a material fact?

A material fact is a fact that can affect the outcome of a decision. Accordingly, the findings on the material facts are those that support the decision.

Material fact examples
  • Is it ‘personal information’?
  • Is it a ‘trade secret’?
  • Was it created for the consideration of Cabinet?
  • Is it a budget document?
  • Was it brought into existence by or for a lawyer for the dominant purpose of providing legal advice?

Evidence

A statement of reasons must also refer to the evidence on which each material finding of fact is based.  It is not sufficient to simply list all the documents considered in making a decision.

Evidence examples
  • Where a third party objects to disclosure – applicant/third party submissions
  • Sufficiency of search – information from operational areas of your agency about record keeping practices
  • Deliberative process – information from operational areas about prejudice if a document were to be released
  • Workplace investigations – advice from HR about what the applicant has already received, whether witnesses were told information would be kept confidential.

Importantly, a statement of reasons must detail all the steps in the reasoning process and should enable a reader to understand exactly how the decision was reached.

Review rights

The statement of reasons must set out the applicant’s rights of review. This should generally include details of how long they have to exercise those rights and to whom they should direct any request for review. The OIC has an Information Sheet which decision makers can include with their statement of reasons to satisfy this requirement.

Note

If the initial decision is made by the agency’s principal officer, the statement of reasons needs to state that the applicant can only seek an external review. There can be no internal review from a decision made by an agency’s principal officer.

Decision format

The format of the statement of reasons is vital in assisting the applicant’s understanding of the decision.

Language

A statement of reasons should be written in language and a style that can be easily understood by the recipient.
Language tips:

  • Write in plain English and say what you really mean.
  • Avoid jargon, legalese, and unnecessary acronyms.
  • Be aware of active voice and passive voice.
  • Use headings.

Templates

Template letters can be useful tools in decision writing, however they need to be adapted for the circumstances.  There are tips for drafting a template decision letter at Appendix 1.

The template should be used a guide or framework for the decision and must be adjusted according to the circumstances of each decision and agency.  Templates should include triggers for decision makers to:

  • organise their thoughts
  • summarise the decision
  • recap the terms of the application
  • define the information in issue
  • nail down the facts and evidence
  • explain the law
  • set out findings
  • re-state the decision; and
  • adhere to formal RTI and IP Act requirements – name, date, delegation, rights of review etc.

The Information Commissioner’s role

The Information Commissioner is also required to provide reasons for decisions on external review, such as decisions affirming, varying or setting aside a decision of an agency11 and decisions not to deal with or further deal with all or part of an external review application.12

In an external review, if the Information Commissioner considers the reasons for a decision given by an agency in a prescribed written notice are not adequate, the Information Commissioner can require the agency to provide an additional statement containing further and better particulars of the reasons for the decision.13 Where such a request is made, an agency must provide the additional statement as soon as is practicable or within 20 business days.
The Information Commissioner may review statements of reasons given by agencies for a range of decisions in order to monitor and report on agencies' compliance with the requirements of the RTI and IP Acts and to develop procedures for good practice.14

Further guidance

When making a decision on an access application under the RTI or IP Acts, agencies are encouraged to refer to the flowchart guides in Appendix 2 to this guideline.  Referring to the flowcharts when preparing decisions should assist agencies to statements of reasons which comply with the requirements of the RTI and IP Acts.

Decision makers should refer to this guideline in combination with the requirements of the legislation when making decisions under the RTI Act and IP Act; this guideline is not intended to be used as a substitute for application of the legislation.

  • 1 Under sections 54 and 191 of the RTI Act and sections 68, 73 and 199 of the IP Act.
  • 2 Incorporating the additional information required under section 54 of the RTI Act and section 68 of the IP Act.
  • 3 Section 54(1) of the RTI Act and section 68(1) of the IP Act.
  • 4 Section 32(2) of the RTI Act and section 52(2) of the IP Act.
  • 5 Section 37(3)(c) of the RTI Act and section 56(3)(c) of the IP Act.
  • 6 For more information, see OIC’s guideline: https://www.oic.qld.gov.au/guidelines/for-government/access-and-amendment/disclosure-logs.
  • 7 This information sheet provides general information about review rights: https://www.oic.qld.gov.au/guidelines/for-community-members/information-sheets-access-and-amendment/explaining-your-review-rights-a-guide-for-applicants.
  • 8 For more information, see OIC’s guideline: https://www.oic.qld.gov.au/guidelines/for-government/access-and-amendment/processing-applications/searching-for-documents-process-and-requirements.
  • 9 Section 27B of the Acts Interpretation Act 1954 (Qld).
  • 10 Section 110(2) of the RTI Act and section 123(2) of the IP Act.
  • 11 Section 94(2) of the RTI Act and section 107(2) of the IP Act.
  • 12 Section 99 of the RTI Act and section 112 of the IP Act.
  • 13 Section 131(1)(a) of the RTI Act.

Appendix 1 Tips for drafting decision and reasons for decision

Quote scope of the application

Unless it is very lengthy, quote the scope directly from the access application, rather than paraphrasing it. Explain if the scope has changed following negotiations with the applicant.

Is neither confirm nor deny appropriate?

Where an application is expressed in this form – seeking access to a complaint made by a named person – it’s important to think about whether you should neither confirm nor deny that the complaint exists.

Explain searches conducted

It may be helpful to outline the searches conducted in response to the application.  This won’t be necessary in every case – for example, where the applicant seeks specific documents and all documents have been located.

If you provide information about the searches, provide enough detail for the applicant to understand the nature and extent of searches that were conducted. For example:

  • identify the locations/offices/units/records/databases in which searches were conducted for documents
  • explain why those locations/offices etc were selected as appropriate locations to search for the documents
  • set out what search terms used for electronic searches; and
    * set out the results of the searches (use a schedule if appropriate).

Describe documents located in response to the application

Describe the nature of the located information while taking care not to reveal information that you are claiming is exempt or contrary to the public interest to disclose.   The level of detail included in the description will depend on the number and type of documents located.

Explain reasons for decision

Providing reasons for decision is an important accountability mechanism that ensures transparency in decision-making.  A statement of reasons provides the person affected by the decision with an opportunity to have the decision properly explained.

The reasons for decision must properly explain:

  • the power to make the decision
  • the legal basis on which the decision was made
  • the evidence considered
  • the findings of fact and how these were reached; and
  • how the law applies to the facts in this specific case.

If you have different types of information or different grounds for refusal, deal with them separately.  Think about how best to structure the decision.  In some cases, you may be able to deal with all of the contrary to the public interest information together.  However, if you have different categories of information that give rise to different public interest factors, it may be easier to separate them.

Evidence relied on

Set out any facts that you have based your decision on and explain the evidence that you have used to reach these findings of fact – for example, your discussions with the business unit, correspondence with the applicant contained in the information in issue.

Apply the law to the facts

The reasons must explain all of the steps in the reasoning process that led to the decision – linking the facts to the decision.  The reasons should enable the applicant to understand exactly how the decision was reached – they should not have to guess.  The reasons must go further than just expressing conclusions, it must give reasons for the conclusions.

If you decide that the information is, on balance, contrary to the public interest to disclose, the prescribed written notice must include a reference to section 47(3)(b) of the RTI Act and any factors that you identify either in favour or against disclosure: section 54 of the RTI Act and section 68 of the IP Act.

OIC often has Information Sheets that can help to explain issues to the applicant.  Consider including these with your decision.

Current as at: March 4, 2016