The Court of Appeal has dismissed the appeal by Dr Lee Wei Ling and Mr Lee Hsien Yang over the copyright and use of transcripts of interviews given by their father, founding prime minister Lee Kuan Yew.
Chief Justice Sundaresh Menon and Judges of Appeal Andrew Phang and Chao Hick Tin said in a judgment yesterday that the estate of the late Mr Lee is not entitled to use or have copies of the transcripts.
They also ruled that only Mr Lee, and not his estate, could grant permission for access to, supply of, or use of the transcripts. Likewise, unless it can be shown that Mr Lee had given permission, the Government cannot grant anyone access to them for five years after his death - that is, until March 23, 2020.
The transcripts likely fall under the Official Secrets Act (OSA) since they cover information Mr Lee had obtained owing to his position in the Government at that time, they said.
The three-judge panel had reserved judgment in April this year after hearing the arguments of both parties. The case centres on transcripts containing accounts of affairs of state as observed and experienced by Mr Lee, who was PM when he gave the interviews as part of a government oral history project in the 1980s. He had signed an agreement on the copyright and use of the transcripts.
Dr Lee and Mr Lee Hsien Yang, as executors of their father's estate, had applied to the High Court in September 2015 to seek a declaration that all rights to the interview transcripts belong to the estate following their father's death. They wanted the court to clarify the interview agreement he had made.
Yesterday, the judges said they had no doubt Mr Lee was mindful of the OSA in relation to the transcripts. It also noted that while it is true that some parts of the transcripts concerned Mr Lee's personal matters, most of the material covered was, at least potentially, of a politically sensitive nature, which Mr Lee was aware of.
"Mr Lee's overriding concern at the time of the interview agreement was to maintain strict control over the transcripts," they said.
"It is implausible in our judgment that he would have intended the rights he had carved out for himself under the interview agreement to be passed to as-yet unnamed and unknown executors who would potentially be able to wield considerable control over the politically sensitive transcripts," they said.
While Dr Lee and Mr Lee Hsien Yang have indicated they would not release any information in the transcripts that contravenes the OSA, that contention wholly misses the point that they would have breached the Act simply by retaining that information, the judges added.
"Their status as Mr Lee's children does not exempt them from the operation of the OSA," they said.
They concluded that although Mr Lee had secured for himself certain rights under the interview agreement, while imposing some restrictions on the Government's ownership rights over the transcripts, these were personal rights of his and not transmissible.
The High Court had ruled last September that the estate held the copyright of the transcripts insofar as to ensure that the Government complied with the terms of the interview agreement, but did not have custody over them or the rights to freely use them.
In appealing against the ruling, the estate's lawyers Rajah & Tann had said the Government had sought to describe the interview agreement signed by Mr Lee as one to "protect secrecy".
But since Mr Lee had allowed media outlets to access selected transcripts of the interviews, this proved that the agreement governing the transcripts' use and administration had not been made to preserve their confidentiality and secrecy, they argued.
The Attorney-General's Chambers, arguing in favour of the ruling on behalf of the Government, pointed out that only limited rights to the transcripts had passed on to the estate following Mr Lee's death.