Today’s forms of administrative procedures supported by automated decision-making (ADM) rely on the automated collection and processing of large amounts of information. AI systems used within these processes are designed to scan databases and link different data points to create the required information for decision-making. Establishing accountability mechanisms and human oversight during and after decision-making relies on a proper documentation of the procedural steps leading to a decision and the information processed in doing so. Under the EU standard of the duty of care or diligence, a decision-maker must show that all relevant information has been taken into account in preparation of a decision, including, where necessary, also the information resulting from a hearing. This documentation is contained in the reasoning, which is based on the file. Access to the file is protected explicitly in Article 41 of the Charter of Fundamental Rights of the EU (CFR), but also under the right to a fair hearing and under the right to an effective remedy, the latter two being also explicitly protected in the Charter of Fundamental Rights and as General Principles of EU law.

However, in times of automation, unless it becomes clear which information was taken into account by an ADM system, at which stage, and which relevance is given to each element of information, the central role of access to a file and the reasoning of a decision becomes increasingly hollowed out. This distinguishes ADM from earlier, less automated procedures, which had a clearly established file consisting of documents used in various steps of a procedure. With growing degrees of automation, it is therefore necessary to evolve the concept of a “file” to address central elements of oversight in the age of automation. Such oversight must ultimately be possible by humans. Human oversight is not only a requirement under the AI Act, setting out oversight requirements for certain types of risky applications, it is also a requirement under data protection rules for automated decision-making. But independent of such specific legislative requirements, human oversight is, more generally speaking, also a requirement where review through agency boards of appeal is supposed to be possible and, essentially, in terms of the right to an effective judicial remedy requiring review by courts or tribunals, all of which are human-based. Making such oversight and human review possible requires rendering decision-making by automated and semi-automated procedures intelligible to humans. As in the context of composite decision-making procedures where some phases of a decision-making process are undertaken by automated and others by human approaches, in terms of human oversight, various machine-human interfaces are necessary. With the increasing sophistication of computer systems used in decision-making procedures, explanations of their internal logic, functioning, and training databases will contain increasingly less explanatory value for understanding decision-making in individual cases. Instead, as in the past, access to a record of the decision-making process – its steps, the information consulted, the information retained, and the information discarded – will be essential to review individual decision-making and maintain human oversight. These functions have been allocated in our legal system to the “file”. This record-keeping function of the file is the reason access to the file is so essential as a defence right in preparation for a hearing and in order to be able to enjoy the right to an effective remedy.

This finding imposes design requirements on ADM systems used in EU policies. Unless explicitly designed to maintain a detailed record of the processed information, today’s increasingly technically advanced systems will lead to an increasing opacity and reduction of transparency of procedures and their control possibilities. The redesign of the notion of a file is thus a requirement for procedural law within the EU and its Member States where administrations are often inter-linked in composite procedures.

Procedural Redesign

The requirement of procedural redesign is, however, fraught with new and complex challenges since the automation of public decision-making, while promising efficiency and consistency, risks eroding the very procedural guarantees that safeguard individuals from arbitrary or opaque state action. To preserve the integrity of administrative processes, it is therefore essential to adapt these guarantees to the realities of modern, information-driven governance. The role of these principles is to ensure that individuals subject to administrative proceedings can understand, challenge, and influence decisions that affect them. As algorithms and machine learning models become central to governmental processes, these procedural safeguards face unprecedented challenges requiring redesign in various national and EU-based procedures for implementation of EU policies, for example, in immigration and border control, but also more generally in economic governance, such as in banking and finance supervision, and subsidies control.

CJEU cases like Mukarubega and Kamino International Logistics underscore that the observance of rights of hearing must be guaranteed as General Principles of EU law whenever public authorities adopt decisions with adverse effects upon individuals. These cases were important to reaffirm that where decision-making takes place in the scope of EU law, that is also in areas where Member States have transposed EU law, General Principles of EU law must be complied with. Mukarubega concerned specifically the right to a fair hearing and the conditions under which an individual can have her point of view taken into account prior to a final decision being taken. More generally, the right to access a file, a procedural right independent from notions of defence under Article 41(2)b) of the Charter (Ballmann), is a key component of procedural fairness because it enables individuals to know what evidence and information the administrative body will use, and to contest or contextualise it accordingly. The file is not merely a collection of documents; it serves as the substantive basis for the administrative reasoning. In procedures involving automated and semi-automated decision-making elements, an administrative file is more than just a paper record. ADM systems process unprecedented volumes of information, which can enhance consistency and speed of decision-making. However, the mechanisms by which these systems collect, aggregate, and evaluate data are often hidden from view, resulting in a growing information asymmetry between, on one hand, the provider of a system – often a private company or public bodies – and, on the other hand, individuals. This asymmetry risks undermining the guarantees that procedural rights are meant to provide.

While ADM may enhance decision-making capacity, it simultaneously obscures decisive details: which data influenced the decision, how this information was weighed, and by which logic the outcome was reached. For procedural guarantees like file access and hearing rights to remain effective, the scope and content of “the file” must be re-examined.

A critical step is to redefine the meaning of the administrative file in the context of automated systems. In order to fulfil its functions in an age of automation, a file must therefore specifically list or make reference to all information that was actually used or could have a real impact on the decision, including data inputs, decision parameters, and the key datasets drawn on by ADM systems. This information must be saved in a humanly accessible and readable way in an electronic file. Such a file must then be subject to inspection under the right to access the file. It must equally be available for inspection in instances of administrative and judicial accountability, for example, by complaint boards, courts or ombudsman contexts. It must then, also in cases where hearings in practice are less used in the reality of decision-making, e.g. in cases where individuals make a request for a decision, be part of the reasoning of a decision.

Therefore, traceability and transparency of information flows and processing by authorities require documentation within ADM systems. This does not exclude that, additionally, in line with explainable AI requirements, algorithmic reasoning must be explained when the system’s design or settings are integral to the outcome. But with the increasing sophistication of AI programming, the knowledge that can be gained for the review of individual decisions from such systematic explanations decreases. EU law, including Article 86 of the EU’s Artificial Intelligence Act, reflects certain of these demands by obliging authorities to ensure traceability, explainability, and auditability, albeit only in those areas identified as “high-risk” automation. The demands formulated in the AI Act also appear predominantly designed towards private decision-making procedures and less geared towards standards required by administrative decision-making by public bodies.  Not only does the General Data Protection Regulation (GDPR) confirm that individuals must not be subjected solely to automated decisions when personal data is being processed, without recourse to human review, but it also establishes that there must be opportunities for individuals to challenge and seek explanations for such decisions. Therefore, at every stage of a semi-automated or automated process, there must be interfaces for human judgement – roles and moments where algorithms can be questioned, their outcomes explained, and, where appropriate, their conclusions overruled.

A New Concept of a File and New Access Requirements

To guarantee the effectiveness of the hearing, individuals must be given genuine access to this information. Only with disclosure of the actual data and logic that shaped the decision can a person meaningfully understand and respond to the authority’s reasoning. Additionally, an individual’s right to be heard is hollow if their arguments or evidence are not truly considered by ADM systems; thus, administrative processes must additionally ensure that any reply or new information provided during the hearing is properly integrated and genuinely influences the outcome. Rigorous recordkeeping and clear communication of the reasons for the decision, including a transparent account of the balance of factors considered, become more important than ever in an age of automated or semi-automated decision-making.

In short, legal guarantees of fair hearing and access to a file remain as vital in the digital age as they were in the past. To preserve their effectiveness, their implementation must evolve. The “file” must be specifically identified as the set of information used in decision-making, the sources from which this information stems, and the processing steps of combining this information to the decision-making outcome. This information must be made accessible to those concerned and to anybody relevant as accountability mechanisms. The information in the file in the age of ADM must be accessible and intelligible to humans and be presented in a form that enables them to respond and influence outcomes, should they have a right to a fair hearing. This puts requirements on authorities rolling out ADM systems. They must ensure that new and specific duties to document and communicate their decision-making processes are carried out, allowing decisions to be traced and reasoned through every stage of automation.

Most importantly, it must be possible for accountability mechanisms, such as those relying on humans, including courts, to have the capacity to review, intervene, and ensure that justice is genuinely done and seen to be done. Without a clear notion of an information-based file in the age of automation, no capable interface between the automated and the human components of a decision-making procedure and its review can be achieved.