Problems on the Discretion to Disclose Official Information of the Public Higher Education Institutions of the State

บทคัดย่อ

Official information awareness is a fundamental right of people especially in a country rules by democratic system. As Thailand also rules by democratic system, which has the king as the head of state and having constitution as the supreme law of the country, in the constitution of the kingdom of Thailand B.E.2540 and constitution of the kingdom of Thailand B.E.2550 provided a provision to guarantees the right to public information awareness by stating that the government entities including the public higher education institutions, has a duty to disclose the official information which is in possession or control.

             Later, Official Information Act, B.E. 2540 was promulgated and published in Government Gazette on the date of 10 September B.E. 2540. After such Act came in to force, there were several problems in practice occurred in several government agencies including the public higher education institutions such as public universities. This is because, such government agencies still intend to conceal their possessed information especially the confidential information which was classified under the Rule on Official Secrets Protection issued by the Council of Ministers.  B.E.2544 such as, non-public personal information, management information. This can be seen that it is difficult to enforce the provision under Official Information Act, B.E. 2540 effectively. Furthermore, government agencies including the public higher education institutions also issue the internal rule, order, regulation regarding to the process of disclosing the official information which constitute the cumbersome and difficulty to access the official information, especially the information which is classified as confidential information which possessed or control by the Government agency including the public higher education institution. The officer of public higher education institution particularly in public university usually utilizes their exclusive discretion to object the request to access or to make a photocopy of such information and let a person who makes a request for the information use their right to appeal to the Information Disclosure Tribunal as provided in Official Information Act, B.E. 2540. At this state, the Information Disclosure Tribunal is generally overruling the discretion of the government agencies. To sustain the discretion of rejecting the request is only just the exception. This makes trouble to both the government agencies and a person who makes a request.

             Such above issues reflect the problem due to the lacking of measurement to ensure that the Official Information Act, B.E. 2540 shall be effectively executed. Such Act still need a subsidiary law to be issued to prevent the inhibiting of the right to access the information. Therefore, as the Official Information Act, B.E. 2540 was applied for more than 20 years as well as several problems in practices occurred , it is time to urged to legislate the subsidiary law to set up the measure for the sake of practical clarity regarding to the standard criteria to be a guideline for the officer of state agencies including public higher education institutions to make a decision as well as to facilitate a person, who makes a request for the information, to exercise their right. By this standard of criteria of consideration, the officer would be relaxing from using their exclusive discretion and would reduce the dispute among the government agencies as well as the dispute between the government agencies and the person who request to access the official information.