The Right to Know Why — Governmental Accountability and the Duty to Give Reasons in Administrative Law

Across democratic legal systems, governments routinely make decisions that alter the course of people’s lives: revoking a licence, discontinuing a prosecution, refusing access to official records, or restricting a person’s movements. What citizens are less routinely told is why. The duty to give reasons — the obligation of a public authority to explain the grounds on which it acted — is among the most practically significant and fiercely contested principles in modern administrative law. Its reach and depth differ considerably between jurisdictions, yet the underlying tension is universal: executive power exercised in silence is executive power shielded from scrutiny.

This article examines the duty through four legal lenses: Israeli Supreme Court jurisprudence, United States administrative law under the Administrative Procedure Act, English common law and its recent evolution, and the European Union’s treaty-based framework. Together these perspectives reveal both a convergent trend toward greater transparency and persistent differences in the mechanisms through which it is enforced.

I. Why Silence Is Not Neutral

There is an intuitive case for letting government decisions speak for themselves. Officials are appointed, trained, and accountable through democratic structures. If a licence is refused or a prosecution abandoned, a citizen who disagrees may appeal. What, then, is the additional value of a written explanation?

The answer has several dimensions. First, an explanation enables meaningful challenge. A person who knows only that the decision went against him cannot evaluate whether the decision was legally sound, whether it rested on facts she can contest, or whether the authority considered the arguments she put forward. Without reasons, his right of appeal is formal rather than functional. As the Israeli Supreme Court noted in HCJ 6213/14 Argan v. Israel Police (2016), the absence of reasoning deprives the individual of the ability to engage with the decision on its own terms — to target her objections, to understand what the authority weighed, and to assess whether further proceedings are worthwhile.

Second, the obligation to give reasons imposes a discipline on the decision-maker. The requirement to explain a decision — not merely to reach one — forces officials to examine their own reasoning, to address counterarguments, and to confront the limits of their evidence. Courts across jurisdictions have repeatedly observed that decisions which cannot be explained are often decisions that should not have been made.

Third, reason-giving underpins the legitimacy of judicial review. Courts reviewing executive action on grounds of irrationality or procedural unfairness need something to review. A bare conclusion — “your application is refused” — forecloses any meaningful assessment of the process by which it was reached. The Supreme Court of Israel put this plainly: an unexplained decision cannot be tested for legality, and a decision that cannot be tested for legality effectively immunises the authority from external scrutiny.

These three functions — enabling challenge, disciplining decision-makers, and sustaining judicial review — provide the shared rationale for the duty across all the systems considered here, even where the doctrinal routes differ substantially.

II. The Israeli Framework: Transparency as the Default Setting

A. From Privilege to Presumption

Israeli administrative law has moved decisively away from the idea that access to official reasoning is a concession. The foundational shift was marked by HCJ 10271/02 Fried v. Israel Police (2005), in which the Supreme Court addressed a straightforward but consequential question: must police disclose the materials gathered in a criminal investigation to the very person against whom the case was ultimately closed for insufficient evidence?

The court answered affirmatively. Justice Yaakov Ediel, writing for the majority, formulated what has since become a cornerstone of Israeli public law: transparency is the rule, and secrecy is the exception. Materials that the state collected in connection with a person’s case are presumptively available to that person. The burden falls on the authority to justify withholding them — not on the individual to justify requesting them.

This inversion of the evidentiary burden carries real consequences. An authority seeking to deny access or refuse a request must identify a competing interest weighty enough to override the presumption of openness. Vague appeals to “operational considerations” or “the public interest” are insufficient. The competing interest must be real, it must be proportionate to the right it overrides, and it must be explained.

“The right to know the reasons for a decision that affects one’s interests is not a privilege to be earned but a starting point to be displaced only by demonstrably countervailing considerations.”  — Justice Ediel, Fried v. Israel Police (2005)

B. The Form Must Serve the Substance

Possessing a legal duty to provide reasons is one thing; providing reasons that actually explain anything is another. In Argan v. Israel Police (2016), the petitioner — a man whose criminal investigation had been closed with no charge ever brought — sought to have the grounds of closure changed from “insufficient evidence” to “no offence committed,” a distinction with material consequences for his employment prospects and official record.

The police responded, after repeated requests, that his case had been “thoroughly and comprehensively reviewed” but that no grounds had been found to alter the formulation. No specific circumstances were identified. No reasoning was offered as to why the more favourable formulation was unavailable.

The court was unsparing. The presiding judge recalled that the duty to give reasons is not a bureaucratic formality but one of the fundamental obligations of a public body — a manifestation of basic good faith toward the citizen. It serves simultaneously to sustain a culture of responsible governance, to enhance decision quality, and — critically — to make legal challenge possible in practice rather than theory. A boilerplate response, however politely worded, satisfies none of these functions.

The court did not specify a minimum page count. What is required is that the person reading the response can understand which considerations drove the outcome. Brief explanations are entirely acceptable in straightforward cases; they are simply not interchangeable with empty ones.

C. Active Monitoring: Decisions Are Not Self-Executing

In HCJ 2063/16 Glik v. Israel Police (2016), the court examined a two-year ban imposed on an activist from entering the Temple Mount, issued on grounds that he had violated commitments previously given. The central question was not only whether the ban was lawful at inception, but whether the police had any ongoing obligation to reconsider it as time passed.

The court held that they did. An authority imposing a continuing restriction on individual rights must periodically verify that the conditions which originally justified that restriction have not changed. Mechanical enforcement, without reassessment, is itself a legal wrong for which civil liability may follow. Justice Eliezer Rubinstein placed this within a broader philosophy: a government authority is not a proprietor but a trustee of power, bound to exercise it with restraint and ongoing rationality. The right to seek compensation for arbitrary official conduct is not merely a remedy — it is an incentive structure, one that encourages officials to think carefully before acting and to keep thinking after they have.

III. The United States: Reasoned Explanation as a Constitutional Surrogate

A. The APA’s Structural Mandate

American administrative law addresses the duty to explain through a different institutional lens. The Administrative Procedure Act of 1946 (5 U.S.C. § 706(2)(A)) instructs reviewing courts to set aside agency action found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” This formulation says nothing explicitly about reasons. Yet from it, courts have derived a robust obligation of reasoned explanation.

The pivot came in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971), where the Supreme Court held that the arbitrary-and-capricious standard required courts to conduct a “substantial inquiry” into whether the agency had genuinely engaged with the relevant factors. But the modern architecture was set by Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983).

In State Farm, the National Highway Traffic Safety Administration had rescinded a passive restraint requirement for new cars without adequately accounting for the possibility of requiring airbags as an alternative. The Court held the rescission arbitrary and capricious. The duty to explain, it reasoned, applies with equal force to the revocation of a rule as to its promulgation: an agency must examine the relevant data and offer a satisfactory explanation for its action, including a “rational connection between the facts found and the choice made.”

“The agency must examine the relevant data and articulate a satisfactory explanation for its action, including a rational connection between the facts found and the choice made. Normally, an agency rule would be arbitrary and capricious if the agency has entirely failed to consider an important aspect of the problem.”  — Justice White, Motor Vehicle Manufacturers Ass’n v. State Farm (1983)

B. The Hard Look Doctrine

State Farm established what came to be called “hard look” review: courts would not simply defer to an agency’s conclusory assertion that it had weighed the relevant factors, but would examine the record to verify that the weighing had actually taken place. The doctrine’s origins lie in the D.C. Circuit opinions of Judge Harold Leventhal in the late 1960s, who insisted that meaningful review required courts to scrutinise the quality of an agency’s reasoning, not merely confirm the existence of statutory authority.

Hard look review does not mean de novo review. Courts are not entitled to substitute their judgment for the agency’s on matters within the agency’s technical competence. The question is whether the agency can be said to have genuinely reasoned its way to its conclusion — considered the evidence, engaged with alternatives, addressed significant objections — rather than simply announcing one.

The Chenery doctrine adds a temporal dimension: an agency’s explanation must be contemporaneous with its decision. Post-hoc rationalisations advanced only in litigation do not cure an inadequately explained decision; the agency must instead remand and reconsider. This prevents authorities from using judicial proceedings as an opportunity to reconstruct reasoning that was never actually performed.

The practical effect is a body of law that makes transparency instrumentally necessary. American agencies cannot rely on institutional authority or political endorsement as a substitute for substantive explanation. Where the stakes are high — major rulemakings, significant policy reversals, decisions with measurable impact on individuals — the explanation required may run to hundreds of pages in the Federal Register. The degree of explanation required scales with the significance of the action.

C. Individual versus Regulatory Decisions

It is worth noting an important distinction in the American framework. The APA’s hard look doctrine applies primarily to agency rulemaking and formal adjudications, where procedural requirements are most elaborated. For informal individual decisions — an immigration officer’s ruling, a benefit denial, a government contractor’s adverse action — the duty to give reasons is typically found in specific enabling statutes or constitutional due process requirements, and tends to be less demanding. Unlike the Israeli model, American administrative law has not developed a general common law presumption that reasons must be given for individual executive decisions, independent of specific statutory direction.

IV. England: From Reluctance to Qualified Recognition

A. The Common Law’s Uneasy Starting Point

English administrative law has long maintained an ambivalent relationship with the duty to give reasons. The orthodox position, reaffirmed repeatedly over the course of the twentieth century, is that there is no general common law obligation on public authorities to explain their decisions. Unlike in Israel, transparency is not the statutory default; unlike in the EU, there is no treaty text mandating it. English law arrives at reason-giving circuitously, through the demands of procedural fairness in specific contexts.

The landmark case is R v. Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531. The respondents were mandatory life prisoners whose minimum tariff — the period to be served before parole eligibility — was set by the Home Secretary. They challenged the secrecy of that process: they had not been told the judicial recommendations made about their individual cases, nor the reasons why the Home Secretary had departed from those recommendations.

Lord Mustill, giving the leading speech in the House of Lords, confirmed that “the law does not at present recognise a general duty to give reasons for an administrative decision.” But he immediately added that “such a duty may in appropriate circumstances be implied.” In Doody itself, the circumstances were appropriate: the tariff decision was of profound importance to the prisoners’ lives; it involved departure from judicial advice they had never seen; and without reasons they could not make meaningful representations, let alone mount an effective legal challenge. Procedural fairness required that reasons be given.

“The law does not at present recognise a general duty to give reasons for an administrative decision. Nevertheless, it is equally beyond question that such a duty may in appropriate circumstances be implied.”  — Lord Mustill, R v Secretary of State ex parte Doody [1994]

B. The Trend Toward Generality

For two decades after Doody, the law remained in an uncertain equilibrium. Courts were willing to find implied reason-giving duties in high-stakes individual cases, but declined to announce a general principle. The tipping point came with Oakley v. South Cambridgeshire District Council [2017] EWCA Civ 71.

The case concerned a planning authority that had granted permission for residential development against the advice of its own professional officers. The claimant, an objector, sought to challenge the decision but could not identify specific grounds because no reasons had been given. Elias LJ, writing for a Court of Appeal composed of prominent public law judges, accepted that there was no universal common law obligation to give reasons. But he offered a reframing that has proved influential:

“It may be more accurate to say that the common law is moving to the position that, whilst there is no universal obligation to give reasons in all circumstances, in general they should be given unless there is proper justification for not doing so.”  — Elias LJ, Oakley v South Cambridgeshire DC [2017]

This is not a cosmetic revision. Oakley shifted the burden of justification: if the default was previously that reasons need not be given unless circumstances compel them, the emergent principle is that reasons should be given unless there is a good reason for withholding them. The practical difference is modest in straightforward cases but significant at the margins, particularly where decisions are complex, where they affect important interests, or where they diverge from professional advice.

C. Dover and the Supreme Court

The trajectory continued in Dover District Council v. CPRE Kent [2017] UKSC 79, where the Supreme Court addressed a council’s decision to grant planning permission for development in an Area of Outstanding Natural Beauty, overriding its advisers’ objections. Lord Carnwath, after surveying both domestic and European sources for a reason-giving obligation, declined to declare a universal common law duty but held that reasons were required where “openness and fairness to objectors” demanded them.

Lord Carnwath identified judicial review effectiveness as the principal rationale: a duty to give reasons is justified wherever meaningful legal review of a decision would otherwise be impossible. This rationale carries an inherent tension — since virtually all significant administrative decisions are, at least in principle, reviewable — but in practice it has operated to require reasons wherever the decision is complex, the stakes are high, or the outcome conflicts with advice given by qualified experts.

V. The European Union: Codified Accountability

A. Treaty Foundations

The European Union provides the most institutionally explicit framework for the duty to give reasons among the systems examined here. Article 296(2) of the Treaty on the Functioning of the European Union (TFEU) states that legal acts of the EU institutions must state the reasons on which they are based. This is not a principle derived from general administrative law doctrine; it is a constitutional obligation written into primary law, applicable to regulations, directives, and decisions alike.

Article 41(2)(c) of the Charter of Fundamental Rights of the European Union extends the duty to the administrative dimension: among the rights comprising the fundamental right to good administration is “the obligation of the administration to give reasons for its decisions.” Read together with Article 47 of the Charter — the right to an effective remedy — the duty to state reasons is structurally connected to the right of access to a court. Without reasons, an effective remedy is unavailable; without an effective remedy, the decision is not subject to the rule of law.

B. The CJEU’s Requirements

The Court of Justice of the European Union has elaborated the content of this duty through a substantial body of case law. The formulation established in Case C-222/86, UNECTEF v. Heylens [1987], remains foundational: the obligation to give reasons serves two simultaneous functions. First, it ensures that affected parties have adequate information to decide whether to contest the decision. Second, it enables the Court to exercise judicial review.

In Elf Aquitaine SA v. Commission (C-521/09 P), the Court set out the general standard: reasons must be “sufficiently clear and unequivocal” to allow both the Court and the affected party to understand the basis for the decision. A boilerplate recitation of the applicable legal criteria, without applying them to the specific facts of the case, does not satisfy this requirement. The administration must show its working.

The Technische Universität München case (C-269/90) introduced an additional principle: the duty of care. Before reaching a decision, the competent institution must examine carefully and impartially all relevant aspects of the individual case. This is not merely a procedural obligation preceding the decision; it is a substantive condition for the legitimacy of the reasoning that follows. An authority that has not genuinely examined the relevant factors cannot claim to have provided reasons — it can only claim to have supplied conclusions.

“The statement of reasons must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review.”  — CJEU, settled case law from Heylens (1987) onwards

C. Scope and Application

One structural complexity of the EU framework concerns the boundary between EU institutions and member state administrations. Article 41 of the Charter applies directly to EU institutions, bodies, offices, and agencies. Member states are bound by the Charter only when implementing EU law, which means that purely domestic administrative decisions fall outside its scope. However, where national authorities act within the scope of EU law — administering EU-funded programmes, applying EU directives, conducting proceedings with transnational effect — the Charter’s reason-giving requirement applies to them as well.

This boundary has produced litigation. The Commission has, in particular cases, required national administrations to provide reasons for decisions they might otherwise have made without explanation, on the grounds that the decision engaged EU law. The expansion of EU competence has thus carried with it an expansion of the class of decisions for which reasons must be given, even in jurisdictions that do not impose a general common law duty.

VI. Comparative Reflections

A. Where the Systems Converge

Despite their different origins, all four systems share a core insight: the duty to give reasons is not a courtesy but a structural safeguard. It connects the individual’s right to challenge decisions, the authority’s obligation to reason before it acts, and the court’s capacity to maintain legal oversight. Strip away the reasons, and each of these functions is compromised.

All four systems also recognise that the duty is contextual rather than absolute. The depth of explanation required varies with the nature of the decision, the significance of its consequences, the complexity of the factors at play, and the availability of competing interests that may justify limiting disclosure. A simple administrative acknowledgment demands less reasoning than a decision to revoke a professional licence or alter the grounds for closing a criminal case. The standards differ, but the principle is the same: the explanation must actually explain.

There is also convergence on the relationship between reason-giving and the right to be heard. All four systems treat these as complementary rather than sequential: knowing that one’s representations will be considered is not meaningful unless one can discover whether they were, and knowing that the outcome can be challenged is not meaningful unless one knows on what grounds the outcome rested. Fairness, in other words, requires both input and output: the opportunity to speak and the disclosure of what was heard.

B. Where the Systems Diverge

The divergences are equally instructive. Israel and the EU have both established presumptive frameworks: transparency is the default, and closure requires justification. The English approach, by contrast, remains structurally non-presumptive: the absence of a universal duty means that reason-giving is required only where particular features of the case trigger the obligation. The trend in English law, as Oakley signals, is toward a de facto presumption — but it has not yet been formally declared.

The American model is distinctive in a further respect. Hard look review is an instrument of judicial oversight rather than a free-standing right of the individual. It requires agencies to produce reasoning that courts can assess; it does not vest in individuals a right to demand reasons independent of litigation. An American petitioner challenging an agency decision does not invoke a general administrative right to explanation; she invokes the APA’s prohibition on arbitrary and capricious action, and the explanation is what the agency must produce to survive that challenge. The orientation is court-centric rather than citizen-centric.

The EU framework is the most formally comprehensive, establishing the duty as a fundamental right at treaty level. But this comprehensiveness comes with a jurisdictional limitation: it applies to EU institutions and, derivatively, to member states when they administer EU law. National administrations acting outside that scope retain whatever domestic standards their own legal systems impose. The result is a patchwork at the national level, where the quality of reason-giving depends substantially on the nature of the decision being made.

C. Discretion and Its Limits

A recurrent argument offered against robust reason-giving requirements is that they impinge on administrative discretion. Where the law vests a wide margin of appreciation in an official, should courts demand detailed explanations of how that margin was exercised?

The consistent answer across all four systems is that discretion and the duty to give reasons are not in conflict — they are, in an important sense, inseparable. Courts in Israel, the United States, England, and the EU all distinguish between reviewing the merits of a discretionary decision (which they generally decline to do) and reviewing the process by which that decision was reached (which they consistently affirm as their function). Process review without reasons is impossible. An authority that claims a wide discretion while refusing to explain its reasoning is effectively claiming immunity from review — a position that courts across jurisdictions have declined to accept.

This point is sharpest where discretion has been exercised to impose or maintain a continuing restriction on an individual. The Israeli principle in Glik — that an authority must periodically reassess whether the conditions justifying a restriction remain in place — is consistent with the general thrust of European due process case law and the American doctrine against post-hoc rationalisation: official power must be exercised in real time, with genuine attention to the individual case, and the obligation to explain is one of the mechanisms that makes this requirement enforceable.

VII. The Residue of the Unexplained

There is a final observation that transcends doctrinal comparison. All four systems encounter the same human problem: the person who has never been formally charged, never found guilty of anything, but who nevertheless carries an official record that shadows employment applications, security checks, and professional licences. The Argan decision in Israel confronted this problem directly. A case closed for “insufficient evidence” imposes a stigma that a case closed for “no offence committed” does not. Without reasons, the distinction cannot be challenged; with reasons, it can.

This is not a problem unique to criminal procedure. Decisions to deny planning permission, revoke a licence, refuse citizenship, or maintain a security classification can affect a person’s life as profoundly as any formal judgment. The difference is that formal judgments are reasoned, public, and appellable. Too many administrative decisions remain none of these things.

The presiding judge in Argan cited the Israeli poet David Avidan: “One way or another — the stain remains on the wall.” The observation captures something important. Reasons do not remove stains. But they make it possible to examine them — to determine whether they are genuine marks of conduct or merely the residue of an authority’s convenience. A state that explains its decisions invites examination of what it has done. A state that does not invites the inference that there is something to conceal.

That inference, across all the legal systems examined here, is one that courts have repeatedly found good grounds to draw.

Conclusion: Accountability Is Not Automatic

The duty to give reasons does not enforce itself. In Israel, courts have had to insist that boilerplate language is not a substitute for genuine engagement. In the United States, the Chenery doctrine was necessary precisely because agencies, left to their own devices, offered post-hoc rationalisations in place of contemporaneous reasoning. In England, the common law moved only slowly, case by case, toward a position approaching a general presumption. In the EU, treaty language that appears absolute in the Charter must still be applied against the varying practices of twenty-seven member state administrations.

What the comparative record reveals is not a completed achievement but a direction of travel. The expectation that power will be explained is steadily expanding; the tolerance for official silence is steadily contracting. Whether that trajectory continues depends not only on courts but on the institutional culture of government itself — on whether officials see reason-giving as an external imposition to be minimised or as a constitutive element of what it means to exercise power lawfully.

An authority capable of explaining its decisions is, in the most fundamental sense, one that has genuinely made them. That is the strongest argument for the duty to give reasons — and the one least likely to go out of date.

Cases Cited

Israeli Supreme Court

HCJ 64/91 — Khalaf v. Israel Police

HCJ 10271/02 — Fried v. Israel Police (2005)

HCJ 6213/14 — Argan v. Israel Police (2016)

HCJ 2063/16 — Glik v. Israel Police (2016)

United States

Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971)

Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29 (1983)

SEC v. Chenery Corp., 318 U.S. 80 (1943)

England and Wales

R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531 (HL)

R v Higher Education Funding Council, ex parte Institute of Dental Surgery [1994] 1 WLR 242

Oakley v South Cambridgeshire District Council [2017] EWCA Civ 71

Dover District Council v CPRE Kent [2017] UKSC 79

Court of Justice of the European Union

Case C-222/86 UNECTEF v. Heylens [1987] ECR 4097

Case C-269/90 Technische Universität München v. Hauptzollamt München-Mitte [1991] ECR I-5469

Case C-521/09 P Elf Aquitaine SA v. Commission [2011] ECR I-8947

EU Primary Sources

Treaty on the Functioning of the European Union, Art. 296(2)

Charter of Fundamental Rights of the European Union, Arts. 41(2)(c), 47