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Censorship of public archives and the limits of accountability

  • Posted on January 23, 2015

THE ‘CURATION’ OF OFFICIAL ARCHIVES AND THE IDEAL OF ACCOUNTABILITY

Censored letter to Robben Island prisoner Govan Mbeki http://upload.wikimedia.org/wikipedia/commons
/3/32/Robben_Island_Prison_10.jpg Censored letter to Robben Island prisoner Govan Mbeki http://upload.wikimedia.org/wikipedia/commons /3/32/Robben_Island_Prison_10.jpg
In South Africa’s archive sector we are facing a ‘quadruple whammy’ of underfunding, neglect, poor records management and lack of leadership, as well as censorship problems. We recently heard on the Archival Platform blog about Infrastructural inadequacies, misplaced original application forms, missing records and lost documents in the Department of Home Affairs. Our blogs have also carried accounts of the frustrations experienced by archival activists at SAHA (the South African History Archive) seeking to access the TRC (South African Truth and Reconciliation Commission) records in South African archives. SAHA found that the state repeatedly attempted to block access to the TRC archives, or refused to disclose their existence. For more on the TRC archives story visit their website . Stephen Ellis reported last year that sensitive documents in public archives that should be open to view have been deliberately removed by the authorities from time to time.

We are not alone in ‘curating’ our archives. The Swiss Government has only recently (2014) opened parts of its Federal Archives relating to Swiss business engagement with South Africa during the Apartheid years. These archives were closed between 2003 and 2014 because of fears that Swiss businesses would be placed in a difficult position if they were involved in US class action lawsuits accusing them of aiding and abetting the South African government in gross human rights violations. These cases were dismissed in December 2013, so the business risk abated and the archives were opened.

Censorship of official archives is often invisible. There has been a lot of talk in modern democracies about the principles of transparency in government, freedom of information and open access to government archives. Initiatives like the Open Government Partnership have received broad support. The idea is that good governments operating according to the rule of law have nothing to hide, free flow of information helps identify and address problems and opportunities in society, and that good citizens can keep governments accountable for what they do. In such cases a government archive can be a guardian angel of democracy – the fabric of a country’s conscience.

This ideal of the comprehensive and open official archive is a noble one, but it is never fully realized, and not just because of underfunding and poor management of archives. Governments tend to want to promote certain narratives about the past (and their role in it), while hiding or downplaying others. They have therefore always censored (or ‘curated’) the official archive in various ways, both by limiting what goes into them and by controlling who sees it. Efforts to make government ‘curatorship’ of the official archive more transparent have included, in the case of SA, the UK and other countries:
• Archiving all public records (subject to culling and sensitivity review) after a period of time (this was 30 years in the UK since 1967 but has recently been shifted to 20 years, under the Constitutional Reform and Governance Act of 2010 .
• Releasing some government information under Freedom of Information (FOI) provisions (although UK exemptions for this are unusually broad .
• Limiting the quantity of classified information for which specific exemptions have been given, usually for reasons of security or defence (in the UK this is done by the Lord Chancellor’s Advisory Council on Public Records).

In creating an archive that can keep governments accountable, it is not enough to have open governance policies, and a comparatively transparent and efficient track record of records management. We also need continued vigilance on questions of censorship because the mechanisms for civil society oversight in the public interest are quite weak. In considering these issues, let’s have a look at some recent archives experiences in a leading western democracy, the UK, which, like us, is publicly committed to open and transparent governance.

SINNING QUIETLY

Since the 1960s the British government denied repeated requests for access to documents that we now know contained information about serious torture and abuse of Mau Mau suspects, and other examples of unethical actions during decolonization (see Anderson 2011). Some of these documents have been released for public scrutiny since 2012 (Badger 2012).

In June 1957, Eric Griffith-Jones, attorney general of the British administration, writing to the governor, Sir Evelyn Baring, about the systematic abuse of Mau Mau suspects in Kenya, then under British colonial rule, reminded him that “If we are going to sin, … we must sin quietly”.

Griffith-Jones was echoing British government policy that (according to a guidance note drafted in 1961) suggested evidence about embarrassing colonial-era activities be kept secret. Many documents were destroyed and removed in the decolonization process. As colonial officials prepared to depart, documents were classified either as “legacy files” (destined for post-independence archives in the country), or as “watch files” (destined for destruction or repatriation to Britain) (Elkins 2012). Cross-references to “watch files” were systematically removed from the remaining files so that ‘the very existence of the watch series, though it may be guessed at, should never be revealed’.

FOI: Freedom of information: requests are only as good as the system http://commons.wikimedia.org/wiki/
File%3AFreedom_of_Information_logo.gif FOI: Freedom of information: requests are only as good as the system http://commons.wikimedia.org/wiki/ File%3AFreedom_of_Information_logo.gif
Half a century later, some of these “watch files” have been released: an archive of about 20,000 files, now known as the ‘migrated archives’, or ‘special collections’ containing sensitive information about British colonial activities during and prior to decolonization in 37 of its colonies (Badger 2012). The documents came to light because of a case against the British government that had been brought to the high court in London on behalf of five Mau Mau veterans. A dedicated employee on the FCO Kenya desk chased records management staff in the Hanslope Park FCO facility to find the documents after what Elkins (2012) calls two years of ‘FCO stonewalling’. Just before he planned to visit the facility (with a lawyer) to look for them, Hanslope Park staff suddenly discovered the archive (see Anderson 2011). It turned out that the FCO had held these documents in the Hanslope Park records facility since 1994, but had denied their existence in spite of several FOI requests in 2005-6. The documents had not been taken through the proper legal processes of review. UK Archives legislation allows for the retention of some sensitive documents outside the public archive after 30 years but only if they have been classified or reviewed by the Lord Chancellor’s Advisory Council on Public Records.

An official inquiry into the scandal was conducted by Anthony Cary, a former British diplomat in Canada (Cary 2011). The ‘migrated archives’ were then released in eight tranches in 2012-13 and opened to public access at the National Archives, after 1-2% ‘redaction’ of sensitive material under the guidance of Professor Badger of the University of Cambridge (Badger 2012). In 2013 the FCO admitted that the ‘migrated archives’ were part of a much larger so-called “special collections” section which contained 250,000 files. That estimate was later changed to 1.2m, and then dropped by half to 600,000, due to what was described as a “rounding error”.

The ‘migrated archives’ documents showed the extent of British involvement at the highest level in the abuse of Mau Mau suspects (such as torture and forced labour), especially in the detention camps (see here) and Anderson 2011). As a result, just over 5,000 veterans won an apology and compensation from the British government of about £20 million, in an out-of court settlement in 2013. Currently, the Guardian reports that over ‘40,000 Kenyans are attempting to sue the British government for compensation in a second Mau Mau group action, alleging physical abuse or mistreatment during the insurgency against colonial rule in the 1950s.

A TRIUMPH OF ACCOUNTABILITY AND TRANSPARENCY?

Only the most optimistic commentators will view this as a good news story about the timely release of important historical records. It is true that the documents were kept safe for 50 years and then released after a combination of pressure from victims, civil society, experts and lawyers. This could not have been achieved without ethical actions by civil servants (notably the dogged FCO officer who tracked them down). This in the end promoted (limited) democratic accountability and enabled some (limited and delayed) reparations for human rights abuses committed under colonial rule. Cary (2011) and Badger (2012) claim that it was weak management and confusion over the content, location and status of the migrated archives, rather than deliberate obfuscation, that prevented the FCO responding effectively to legal requests for access to the documents since 2005. Badger says that senior records management staff at the FCO have now been replaced with professionals keen to avoid further ‘embarrassment’ (Badger 2012). In May 2014, the FCO was still promising to hire 12 new “sensitivity reviewers”, to add to its team of 26 “former senior diplomats” who scrutinise (and sometimes redact) archival material before publication.

As Badger (2012) himself acknowledges, the case raises a number of concerns and questions (see for example Anderson 2011, Elkins 2012, Drayton 2012). These are relevant to issues around archival access and accountability of governments in many other contexts.

Many important historical documents (or parts of documents) have been deliberately destroyed (or authorized for destruction) by government in the creation of public archives. This is a process covered by law, although it is sometimes aimed at covering up abuses of state power, and it is difficult for civil society to find out much about it.

We cannot say in this case how much of the decolonization archive was destroyed before it reached Britain, and what those documents contained. Even after some material was brought to the UK, it was not properly tracked within the legal framework of the archives system. Destruction of the ‘migrated archives’ documents was authorized by the National Archives in 1995 and again as recently as 2007 (without apparently checking their contents). They did not take the documents into their custody until the existence of the files became public knowledge (Anderson 2011).

We have no way of knowing what information has been redacted from the ‘migrated archives’. Some historians (e.g. Elkins 2012 and Drayton 2012) have suggested that the released files are surprisingly short on embarrassing information from certain places such as British Guiana, Cyprus and Malaya and surprisingly long on administrative information, given their original selection as “watch files” and long retention in a high security facility.

A delay in access to relevant documentation held in government archives that should be available to public scrutiny can result in a serious miscarriage of justice.

Since the 1960s, when many Mau Mau veterans would still have been alive, and indeed until 2011, the British government refused to make the files available on request, or acknowledge their contents. One of the Mau Mau veterans named in the 2011 court case died before the offer of payment and apology was forthcoming in 2013. Anderson points out that the late provision of the records did not allow the prosecution to prepare properly for the trial (Anderson 2011).

It is difficult to for civil society to monitor government compliance with requests for access to documents that are not (yet) in the public domain. Requests can only be properly fulfilled if government departments understand the law and are willing to allocate the resources to comply with it.

We cannot be sure that all the remaining records have been found. Badger said (2012) that he had been unable to locate the 13 boxes of ‘Top Secret’ Kenyan files from the collection, part of 170 ‘Top Secret’ boxes in the migrated archives group that apparently went missing between 1991-2. He said these records are not at Hanslope Park, and may have been destroyed but there are no certificates of destruction for them. It is difficult to know whether these documents have either been destroyed without proper documentation, or stored in other government departmental archives (Anderson 2011).

It is difficult to make effective FOI requests for documents where their existence is uncertain, and where inventories of these documents are not available, or not detailed enough. Inventories of classified information do not need to be made public in the UK (see for example here. Because there were hints and gaps in the public record, it was known to the prosecution in the Mau Mau case that some relevant documents had been taken to the UK from Kenya (Anderson 2011). But it was not clear whether these documents still existed or where they were being kept. Parts of the ‘migrated archive’ had in fact been accessed by researchers on ‘medicine murder in colonial Lesotho’ prior to 2007, but they only knew about the existence of the records because ‘they were given a file list by the last Governor’s widow’ (Cary 2011, p.6).

Cary’s 2011 report (itself censored in a number of places) acknowledges that FCO archives staff failed to apply proper records management principles to their own archive, and failed to search this archive properly when presented with FOI requests. There were file lists in the FCO for the migrated archive but these were not apparently known to everyone working in the archive (Cary 2011, p.5). FCO staff seemed unsure whether the migrated archives were covered by the Archives Act and the FOI Act or not. Some FCO records management staff had used the documents to answer researcher queries and were well aware of their significance. A number of staff consulted with the National Archives about their possible destruction, and moved them to a different (and inappropriate) section of the Hanslope facility in 2006, just after the FOI requests. Others apparently did not know about the documents, thought they had been transferred, or said they were of no historical value. All these failures worked together to keep the existence of the Mau Mau documents secret until external pressure forced it into the public eye in 2011.

An inventory of all archival documents at the FCO is now available to the public. This inventory has itself raised many further questions and concerns, criticized by some for its ‘opacity’.  It consists material dating back to the 1840s. The retention of these documents by the FCO, as with the ‘migrated archives’, was not apparently covered by any archives legislation until November 2012: under the law, files should either be released after 20 years or retained under certain circumstances after special permission has been granted by the Lord Chancellor’s Advisory Council on Public Records. Interim permission to do so has now been granted, but the FCO is taking its time to review and release documents In May 2014, the FCO promised that 60,000 ‘withheld files’ would be reviewed by 2019, especially colonial reports, but did not say when the rest of the estimated 540,000 files would be released.

A number of academics have called for legal action to ensure the opening up of the entire FCO ‘special collections’ archive . A symposium was held on this ‘Secret Archive’ in London in May 2014 to discuss the issue.

THE NEED TO REMAIN VIGILANT

As citizens, we there need to remain vigilant about the process of censorship: what goes into government archives, and what comes out. There should be comprehensive coverage of government agencies in the acquisition of material for government archives, effective records management, the provision of broad, free public access to the archive, and implementation of open and well-documented policies concerning the withholding and destruction of material. It is very difficult for civil society to monitor government progress in this regard; the relatively effectiveness of government systems is only highlighted when cases like the ‘migrated archives’ shine a faint light into their inner workings. We can only hope that civil society vigilance, official embarrassment about engaging in censorship, professional ethics and the occasional error will help to work against censorship in official archives.

As official documentation and archival management changes in the digital age, it’s worth considering new opportunities and challenges in ensuring that official archives continue to promote transparency in government. Digitized and born-digital archives and finding aids can be easier to copy and search than paper records, making duplication and discovery somewhat simpler, but digital formats also occasionally make it easier for governments to hide, weed out and delete records, as the Bush White House emails controversy showed.

REFERENCES

David Anderson 2011 ‘Mau Mau in the High Court and the ‘Lost’ British Empire Archives: Colonial Conspiracy or Bureaucratic Bungle?’ The Journal of Imperial and Commonwealth History 39.5 (2011): 699-716.
Mandy Banton 2012. ‘Destroy? ‘Migrate’? Conceal? British Strategies for the Disposal of Sensitive Records of Colonial Administrations at Independence.’ The Journal of Imperial and Commonwealth History 40.2 (2012): 321-335.
Anthony Badger 2012. ‘Historians, a legacy of suspicion and the ‘migrated archives’.’ Small Wars & Insurgencies 23.4-5 (2012): 799-807.
Anthony Cary 2011 ‘Report to the FCO on the Migrated Archives’
Richard Drayton 2012 ‘Britain’s Secret Archive of Decolonisation’
Catherine Elkins 2012 ‘The colonial papers: FCO transparency is a carefully cultivated myth’

See also

Yvonne Perkins, Archives are Important… Very Important
Yvonne Perkins, If… we are going to sin, we must sin quietly

Harriet Deacon is a correspondent for the Archival Platform in the UK. She has been involved in the development of capacity-building materials for the Intangible Heritage Convention.

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