Q23: What communication is appropriate?
Good practice and natural justice support providing the reasons for and outcome of a decision to those affected, unless the statute provides otherwise.
Where the relevant Act is silent, there is no general legal duty to proactively provide reasons; but natural justice and good practice may still require you to record and/or give reasons for a decision or the recommendation for a decision, especially if requested. There are good reasons to record and provide reasons:
- Any person about whom a decision is made has a right to a written statement of the findings of fact and reasons for the decision (s 23 of the Official Information Act) and has rights of access under the Privacy Act, both subject to withholding grounds.
- Notice of reasons help an affected person decide whether to challenge the decision. The existence of an appeal right – or availability of judicial review – mean that notice of a decision must be provided so that the appeal or review can occur.
- Reasons provided at the time of the decision reduce the needs for a decision-maker to later explain the decision to a court if challenged. If no reasons are recorded, a court could infer there were no good reasons.
In deciding what other communications are appropriate, you should consider confidentiality, privacy, risk of defamation, and what is in the public domain already.
Decision-makers should weigh up the following factors in deciding what, if any, broader or public communications are appropriate:
- Were assurances regarding confidentiality provided to any person in the process? Generally, public decision-makers should be cautious in providing assurances, as Privacy Act or Official Information Act disclosure obligations may override them.
- Will a communication breach the privacy of any individual involved with the decision? Careful consideration of the relevant Privacy Act provisions is required. Once the decision is published, the Privacy Act may also entitle a person to seek correction of information published or to include a correction statement alongside the information.
- Will the information be defamatory – will it lower the reputation of the person in the eyes of the public and not be defensible as truth or honest opinion?
- Has the information been requested already? If material has been or will be released to a third party, and is in the public domain, public communication may be more appropriate to provide context
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