13 October 2016

Memories, Official Secrets, and the National Archives: A matter of governmental judgment or archival discretion?

In the case of Lee Wei Ling and Lee Hsien Yang vs Attorney-General, the honorable Tay Yong Kwan has ruled that the transcripts of the late Mr Lee Kuan Yew's interviews with the National Archives are:
1. covered by the Official Secrets Act;
2. copyrighted by Mr Lee's estate, but only to the extent of "ensuring the Government's compliance with the Interview Agreement"; and
3. in custody of the Cabinet Secretary [our note: till 2020, when the Government may exercise the discretion to hand them over to the National Archives then, at a later date, or never, or indefinitely delay that decision].

Both the Estate and the Attorney-General appear to have disregarded the consideration and interests of the Archives itself when they argued their cases. Neither the National Archives of Singapore, any of its fellow SARBICA member associations, or even the International Council of Archives were called by either side to submit an affidavit for the case. It thus falls on us at Illusio to illustrate how an archival institution or a community of archival experts may possibly view the case. Or at least, weigh in on whether and when archival interviews should be official secrets, and who typically has copyright, and explain why.

Why should there be copies of an interview? Who should have them?

While the learned judge has ruled that the Estate (i.e. its executors, Ms Lee and Mr Lee) will not have a copy of the interview and transcripts, it is important to note that standard archival procedure insists on every interviewee and their surviving estates being furnished with one. Whether or not it's a state institution or a university or private archives, this is part of the legal, institutional, and ethical requirements.

And it matters greatly. Especially for a significant personage like the late Mr Lee.

Supposing someone gets interviewed today by the National Archives. Years down the road, maybe even after the death of the interviewee, the Archives may use selected quotes from that interview in some exhibition or publication.

How do we know if the quote used was not cherry-picked, taken out of context, or even fabricated? In the case of Mr Lee Kuan Yew, who is to say that a future government may not cherry-pick, take out of context, or otherwise fabricate some quote from this interview? The list of suspects are many. A weak and ineffectual government might do this to bolster its legitimacy by tying it to his legacy; an opportunistic PAP government might do this to build up a Lee cult of personality and overstate his legacy; an opportunistic non-PAP government might do this to destroy his legacy. That's not even accounting for the possibility of a slipshod, careless, or overenthusiastic Archives making an honest mistake.

The copy of the interview that's in the keeping of the interviewee (or their surviving estate) thus serves as a safeguard. Or as the Archive's Request for Oral History Interview in the National Archives operating manual and bible (Memories & Reflections: The Singapore experience) ("Handbook") puts it: three copies are made of any interview recording. One is its preservation copy; another is the interviewee's complimentary copy; a further third copy will be placed at the reference room for public access and consultation, at the discretion of the Archives (p. 177). These days, there's a fourth copy but we'll come to that later.

What the Handbook looks like. It's even listed proudly at the National Archives and available for purchase.

It's not merely about niceties or procedure. It's a matter of ethics, and maintaining the credibility of any archival institution and the integrity of its repository. It's a matter so important, the handbook devotes several pages and an entire chapter on it.

While the judgment considers the modified Interview Agreement that Mr Lee signed with the former Archives director and the AG, it is important to weigh this against the standard Interview Agreement of the National Archives and its institutional peers, as well as the ethical and integral reasons underlying these agreements as outlined in the Handbook.

And while the judgment states that the recording and transcripts should be kept in custody of the Cabinet Secretary, it is unclear Mr Lee has given up his rights (and his Estate's) to the complimentary copy, or that the Cabinet Secretary has custody of the Archive's copy (and one can argue the clause for the Government to release it to the Archives in 2020 means it is the Archive's copy), or whether the Cabinet Secretary has a mysterious fourth copy.

Sample interview release form from the National Archives
Why should Archives interviews be Official Secrets?

An archival institution would ask: if the interview and its transcripts are Official Secrets, would this mean that the Government may, at its discretion, refuse the Estate access to the contents of the transcripts and interview?

An archival institution may even argue that declaring an interview and its transcripts as Official Secrets defeats the purpose of conducting an interview for the purpose of making it accessible to the public at large or select members of the public (such as researchers). It is interesting to note that the Handbook insists on an written Interview Agreement "in an attempt to make more recordings available to the public" (p.99), and allows them to review and vary the access conditions of the Interview Agreement to their considerations and liking.

It is also interesting to note that the learned judge refers to the parliamentary records on 3 February 1981 on Mr Lee's interview with the National Archives to determine if the interview and transcripts should be Official Secrets.

Reading this particular section,
The aim of the Oral History Programme is to record the experiences of key persons involved in events of historical, political and social significance, particularly during the postwar years. These recordings will contain first-hand information on important events. The Unit is conducting and recording interviews on its first two projects: (i) Pioneers of Singapore; and (ii) Political Developments in Singapore, 1945-1965. The interviewees for the Pioneers of Singapore project are successful businessmen who have contributed to the economic and social development of Singapore. Eighteen persons have been interviewed for the Pioneers of Singapore project and 17 for Political Developments in Singapore 
The Department of Archives and Oral History will catalogue and index all tapes and transcripts. These materials will be part of the national archival collections and may be referred to by researchers, civil servants, teachers, students, broadcasters and members of the public, subject to conditions, if any, laid down by the interviewees.
and conferring with the Official Secrets Act, the learned judge makes the conclusion that because the project was initiated by the government, and all government documents are Official Secrets, it's obvious the interview and transcript are covered by the Official Secrets Act.

And yet a typical archivist or archival institution would argue, upon reading the same excerpt and conferring with their Handbook or foundational charter (say, for the National Archives, the National Archives and Records Centre Act, now subsumed under Part 2A of the National Library Board Act), that it's obvious from the similar wording between the parliamentary record and the charter and handbook that the interview and transcript are created as a National Archives project for the public and not the Government, and thus are subject to the Archive's discretion on classification and access.

Mandatory secret or discretionary access?

The implications of the learned judge's decision go far beyond Mr Lee's transcripts and interviews. We note that as of this date, the Pioneers of Singapore and Political Developments in Singapore, 1945-1965 projects are of course available to all and sundry, for research and consultation, and readily available online as well. That's your fourth copy, for those of you who have made it this far.

Interviewees under this project include the high and mighty as well as the flies on the walls of the corridors of power. There is no shortage of politically sensitive information revealed in the transcripts that are available online; including David Saul Marshall's description of the Governor exercising the Queen's reserve powers in blocking his appointment of a minister. Through its actions and deeds, it appears that the National Archives is the body that exercises discretion on whether "political sensitivities" should determine public access to its interviews and transcripts, and does so regularly.

We wonder if the judge's decision will create a precedence or an impression that any agreement between an individual to transfer their assets to the National Archives for public use and research will be superseded by the Official Secrets Act, simply because that project was initiated by the National Archives, or that the Archives is part of the government.

Whose copyright? Whose transcripts?

The Estate argues that from the Interview Agreement that between the death of Mr Lee to 2020, all copyright should vest in the Estate, while the recordings and transcripts should be in the custody of the Cabinet Secretary. It is only after 2020 that all copyright will be transferred to the Government of Singapore, as per the Interview Agreement.

It is not an argument that the learned judge disagrees with, regardless of whether the Official Secrets Act applies to the interview and transcripts. It is interesting that the learned judge makes an additional inference that the Official Secrets Act restricts all normal copyright of the Estate and modifies the meaning of "all copyright, including literary rights" to the point where the Estate (and by extension its predecessor, Mr Lee) only has the legal power to ensure the Government's compliance with the Interview Agreement. This inference is surprising, given the substantial alterations of Mr Lee, Mr Tan, and the AG to the standard agreement, and the explicit wording of these alterations.

Here's the nub of the entire matter: Between now and 2020, if the Estate has "all copyright including literary property rights" to the interview and transcripts, it may publish or commission a third party to publish the interview and transcripts. This is what the judgement squelches.

But here's the thing: What is the status of the transcripts?

We note that from the Handbook, it is clear that the work created is the interview recording and not the transcripts. The transcripts are a derivative work and not the work itself.

The prime minister pointed out earlier this year in parliament, using no less than an incident regarding a parliamentary speech by the late Mr Lee, that transcripts are not the same as a spoken record. Depending on the preferences transcriber and editor, a transcript balances readability and verbatim record. In the case of Chinese dialects, a transcript by the National Archives is not even a record of what was said, but a translation into Standard Mandarin.

On the "mystery" of how Mr Lee came to have a copy of the transcripts

Much hay has been made regarding the tapes and transcripts formerly in the possession of the late Mr Lee, and their subsequent removal from his residence. A certain website has even claimed that the recordings were removed, an allegation that is easily proven false had its editors read through the judgement themselves.

We note that the Handbook allows interviewees and their successor Estates to keep a complimentary copy of the recording; nothing is said about their right to keep the official transcript. However, the Handbook (p. 88) does say this: "OHC allows interviewees who are keen to transcribe their own interviews on a voluntary basis to do so." Not so big a mystery, if the Estate or the Attorney-General knew who to ask, and bothered or wanted to ask.

The mystery is whether the transcript that was "taken away" from the residence was the late Mr Lee's copy of the Archive's transcript, or whether this was a personal and unofficial transcript that, while allowed by the Archives as per the Handbook's guidelines, is not part of the Interview Agreement and may not be subject to the Official Secrets Act, if indeed the Official Secrets Act does apply.

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