Saving Syria’s Children: Tribunal upholds BBC’s rejection of FOI request

Following a hearing on 24 November 2016 the First-tier Tribunal (General Regulatory Chamber) has dismissed my appeal against the decision of the Information Commissioner’s Office (ICO) to uphold the BBC’s rejection of my Freedom of Information request for material relating to the September 2013 BBC One Panorama programme ‘Saving Syria’s Children’.

The text of the Tribunal’s decision is reproduced below. A number of links are embedded for reference. A copy of the original decision is here (PDF).

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First-tier Tribunal
(General Regulatory Chamber)
Information Rights

Appeal Reference: EA/2016/0120

Heard at Fleetbank House, London EC
On 24 November 2016
Promulgated on 01 December 2016

Before

ANNE CHAFER
CHRIS HUGHES
ANDREW WHETNALL

Between

 ROBERT STUART

Appellant

and

 INFORMATION COMMISSIONER

Respondent

 

DECISION AND REASONS

1. The Appellant in these proceedings is critical of the journalistic standards of the BBC in relation to a BBC One Panorama programme broadcast in 2013 “Saving Syria’s Children” (“SSC”).

2. He pursued a complaint through the BBC processes and was dissatisfied with the outcome; he told the tribunal that the BBC disagreed “without addressing many of my points“.

3. On 14 January 2016 he made a sixteen part request for information concerning the broadcast including for:-

“1. All internal BBC communications, documents and reports relating to the commissioning, planning and production of SSC…

3. All internal BBC communications, documents and reports pertaining to complaints made by myself and others about SSC and related BBC News reports…..

5. All footage and still images shot by members of the SSC team…..

10 Recordings or transcripts of interviews with members of the SSC team conducted by the BBC Trust Unit’s independent Editorial Adviser (IEA)

12. All other recordings or transcripts, correspondence, documents and reports pertaining to investigations and deliberations of Stages 1,2 and 3 of the BBC complaints process in respect of complaints made by myself and others about SSC and related BBC News reports…”

4. The BBC replied promptly on 26 January 2016 explaining that it would not release the information:-

“The information you have requested is excluded from the Act because it is held for the purposes of “journalism, art or literature”. The BBC is therefore not obliged to provide this information to you and will not be doing so on this occasion. Part VI of Schedule 1 to FOIA provides that information held by the BBC and the other public service broadcasters is only covered by the Act if it is held for “purposes other than those of journalism, art or literature”. The BBC is not required to supply information held for the purposes of creating the BBC’s output or information that supports and is closely associated with these creative activities.”

5. The Appellant complained to the Respondent Information Commissioner (“ICO”) on 11 February 2016 about the refusal. In that complaint he indicated that he had complained to the Metropolitan Police and he complained that the BBC had contravened Article 20 of the International Covenant on Civil and Political Rights (“ICCPR”) which prohibits propaganda for war and advocacy of national, racial or religious hatred.

6. The ICO wrote explaining the preliminary conclusion of the investigation on 12 March. This explained that the BBC is a public authority for the purposes of FOIA in respect of information held for purposes other than those of journalism, art or literature. The letter quoted from the Supreme Court decision in Sugar (Deceased) v British Broadcasting Corporation and another [2012] UKSC4 which explained this expression (Lord Walker at para 70):-

“‘journalism, art or literature’ seems to be intended to cover the whole of the BBCs output in its mission (under article 5 of its Royal Charter) to inform, educate and entertain the public. On that comprehensive approach the purposes of journalism, art or literature would be, quite simply, the purposes of the BBC’s entire output to the public.”

7. The Appellant repeated his claim with respect to the ICCPR and asked that the ICO proceed to a decision notice.

8. In his decision notice the ICO re-affirmed the position he had previously indicated and the stance the BBC had taken concluding (DN para 16, 18):-

“16 The Commissioner considers that the requested information is directly related to the BBC’s output as it relates to planning and production of a programme that was aired on the BBC in September 2013. In particular it relates to the gathering and collecting of material for broadcast and any reviews of the standards and quality of the production on the back of any complaints received.

18 The Commissioner has therefore found that the request is for information held for the purposes of journalism and that the BBC was not obliged to comply with Parts I to V of the Act”.

9. The appeal was lodged on 26 April. It set out why the Appellant considered the broadcast was fabricated and claimed that the release would facilitate “myself and others” in pursuing “rights owed under Article 20 of the International Covenant on Civil and Political Rights.”

10. The Registrar in a Case Management Note of 3 May explained the Tribunal’s power and jurisdiction which was limited to deciding whether the decision notice was in accordance with the law and the tribunal was unable to grant him a remedy with respect to his claim of breach of the ICCPR. She further explained that he had not provided grounds for appeal which explained why he considered the ICO was “wrong in law i.e. the ICO was wrong to conclude that the information was held for the purposes of journalism, art or literature.” She directed that he provide “any reasons that he says the information he sought was/is not held by the BBC for purposes of journalism, art or literature”. Despite this clear instruction the Appellant failed to comply with this requirement. He placed the Case Management Note on the internet without permission and was directed by the Tribunal to remove it.

11. In the reply the ICO provided a history of the Appellant’s complaints to the BBC alleging breach of BBC and OFCOM guidelines and the steps the BBC had taken to investigate, leading to the conclusion of an Independent Editorial Adviser:-

“… The EIA’s conclusion, taking into account this evidence, was that the incident depicted in Panorama took place as described…

The Adviser reviewed the authoritative body of evidence substantiating the Panorama programme and concluded that were this complaint to proceed to appeal, Trustees would not be likely to uphold the allegation. She therefore did not consider the appeal had a reasonable prospect of success and did not propose to put it before Trustees”.

12. The ICO resisted the appeal and set out a detailed exposition of the law in the light of the binding decision of the Supreme Court in Sugar.

13. In the Tribunal the Appellant agreed that he was concerned with journalistic standards. It was clear that he had not turned his mind to the contents of the Case Management Note directing him to explain why he said that the information was not held for the purposes of journalism, art or literature, nor had he engaged with the explanations put forward successively by the BBC and the ICO. He was unable to assist the Tribunal with any arguments why the material was not held for the purposes of journalism, merely his strongly held belief that the material was not genuine. He was unable to grasp or explain the fundamental flaw at the heart of his appeal, that having complained about standards of journalism of the BBC (indeed articulating that concern at the start of the hearing) and pursued the BBC complaints process with respect to these standards, he now argued that a news and current affairs programme was not journalism.

14. The difficulty the Tribunal faces with that argument is that it is [sic] does not have the jurisdiction to review the standards of journalism of the BBC or consider how the BBC has handled his complaint about standards, those responsibilities lie primarily with the BBC Trust, certainly not with this Tribunal. The decision in Sugar (see paragraph 6 above) is quite clear, the exemption covers the whole of the BBC’s output, whether it is broadcast to “inform, educate and entertain” (BBC Charter) and whether it is categorised as journalism, art or literature” (FOIA), the Tribunal is not in a position to order its disclosure.

15. At no stage has the Appellant advanced any argument to show why the ICO was wrong in law. The law is very clear. The BBC’s status under FOIA recognises the importance of the freedom to communicate and express and receive ideas and information which is enshrined in Article 10 of the European Convention on Human Rights and FOIA excludes such material from its regime in order to protect journalism and art from state control. The broadcast and associated material are held for the purposes of journalism. This appeal is without foundation and is dismissed.

16. Our decision is unanimous.

Signed Chris Hughes

Judge of the First-tier Tribunal

Date: 29 November 2016

“Napalm bomb” school located

Videos referenced in this post:


A reader of this blog appears to have located the apartment building and the school in Urm Al-Kubra, Aleppo claimed by the BBC to have been the targets of an incendiary attack by a Syrian fighter jet on Monday 26 August 2013.

By analysing topographical features [1] in Videos A – C my reader is confident that the buildings which were allegedly struck are at this location.

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Google Maps location of apartment building and school alleged by the BBC to have been attacked with incendiary weapons on 26 August 2013.   

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The gate of the school can be glimpsed at 13s in Video A

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The school premises in the 29 August 2013 BBC News report. Videos C and D were also shot at the school shortly after the alleged attack.


Video shows  BBC’s screaming, stretchered “black dress woman” walking calmly and unaided

My reader has also made the potentially significant observation that the woman in the distinctive black dress with a gold flower pattern, who was filmed by BBC cameraman Darren Conway upon her subsequent arrival at Atareb Hospital, can be seen in Video A (7 – 12s) being escorted into an ambulance by a group of men which includes two militarily attired figures. [2]

Notably the woman walks to the ambulance unaided and with complete composure. She enters through the sliding door on the vehicle’s right hand side, presumably climbing up two steps to do so (Video A, 8s). Moments later, after the vehicle has turned and is headed towards Atareb, she is glimpsed seated upright within it (Video B, 7 – 11s). This contrasts markedly with the BBC’s footage in which she is stretchered out through the tailgate of the same ambulance on a mattress by five men, apparently screaming in agony.

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The woman in the black and gold dress, who was presented as an incendiary bomb victim in the BBC News report of 29 August 2013, walks towards ambulance calmly and unaided, prior to taking an upright seat. 

Enlargements from the same sequence

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The same woman filmed by the BBC’s Darren Conway upon her arrival at Atareb Hospital, being carried out of the rear of the ambulance on a mattress by five men, apparently screaming in agony.

giphy (4)Darren Conway’s footage, also shown in the 30 September 2013 BBC Panorama special Saving Syria’s Children (36 minutes), features another sequence of the same woman at Atareb Hospital gate, following her “treatment” with white burns cream. [3]

There can be no doubt that Videos A – D relate to the same alleged events reported by the BBC and that the woman entering the ambulance in Video A is the same person who is carried out of it in the BBC’s footage.

Video A was posted on 26 August 2013, the day of the alleged incendiary attack, while Videos B, C and D were posted one or two days later. Scrutiny of the ambulance in Videos A and B makes it clear that it is the same one filmed by Conway. Moreover, the two military figures who accompany the woman into the ambulance are clearly identifiable as being present in the BBC’s footage [4]:

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(Left) Man in combat fatigues with rolled up sleeves and trousers accompanies woman in black dress into ambulance at 9s in Video A; (Right) Same man, identifiable by camouflage pattern on clothing, helps to carry the woman out of the ambulance upon her arrival at Atareb Hospital at 36:39 in Saving Syria’s Children.

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(Left) Man in combat fatigues, cap, dark body vest and carrying weapon boards ambulance at 8s in Video B and at 40s in Video A; (Right) Same man assists in carrying woman from ambulance at 36:43 in Saving Syria’s Children.

Both men board the ambulance on its right side; both are initially in the rear with the woman in the black dress before the man with rolled up sleeves and trousers climbs out and gets into the front passenger seat (Video A, 36s). Upon arrival at Atareb Hospital both men exit the ambulance on its right hand side and both assist in carrying the woman in the black dress out through the tailgate.

menVideo B, 11s

men2Saving Syria’s Children 36:34

Other individuals appear in both the You Tube footage and the BBC’s reports:

Images on left from Video B, right from Saving Syria’s Children (32:32 – 32:35)

Readers of this blog may recall the testimony of a Free Syrian Army commander, stationed in Aleppo province at the time of the alleged attack:

We the fighters of the Free Syrian Army in the North West areas of the City of Aleppo we declare that we were present in this region in August 2013 and we did not meet any air strike with the substance of Napalm on Urum al Kubra or on any other region in the North West Aleppo countryside and we deny the cheap fabrication of the BBC and of the stations that imitate her because it undermine the credibility of the Free Syrian Army. Saying this we do not hesitate to criminalize the criminal acts of the Assad regime and its murderous extermination of its people. And we have done a field investigation with the help of the delegate of the Free Syrian Red Crescent and this has conducted us to confirm what we are saying : no victims, no traces and no memory with anybody of the alleged air strikes with the substance of Napalm.

In 2014 the commander offered to provide BBC journalists with safe transit to Urm Al-Kubra to interview witnesses. Circumstances have changed, but the case for a renewed investigation into the many discrepancies and contradictions surrounding the 26 August 2013 Urm Al-Kubra incident remains pressing. [5]

Notes

[1] My reader deduces that the footage of the aftermath of an attack (Video A, 0:48 – 4:53) shows the interior and rear yard of the house with two small trees outside it (Video A, 22 – 30s; Video B, 31 – 36s) and that this is therefore the apartment building referred to in reports. The shots of emergency vehicles turning towards the afternoon sun (i.e. westwards) at a crossroads (Video B, 13 – 30s) and the rooftop shots from the school of the surrounding area (Video C, 7:26 – 8:07) further enabled my reader to locate the vicinity.

The apartment building is not mentioned in the BBC’s reports, however this subsequent account by Dr Saleyha Ahsan claims that the first target was a three storey building and in BBC complaints correspondence reporter Ian Pannell stated:

There were two attacks. There is eyewitness footage from the first that we have seen: it was a residential apartment block. The second attack was on the school.

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Building with two small trees outside from which a tractor can be seen reversing, identified as the apartment building referenced by the BBC (Video B, 3s).

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After turning around from its initial south facing direction to head north towards the Halab-Idlib Road, the ambulance drives past the same building (Video B, 34s).

Damage to the interior of the bombed building (Video B).

Scenes shot in the rear yard of the bombed building (Video A, 2:51) situate it as adjacent to the multi-storey building next to the school (Video B, 3s), the shadows from which can be seen in the first Google Map image above.

[2] The group does not approach the ambulance either from the direction of the school or from that of the apartment building, but from an intermediate point on the opposite side of the road. There appears to be no activity taking place in the environs of the school.

[3] My reader is of the opinion that the woman who boards the ambulance and is carried out of it upon arrival at Atareb Hospital is taller and larger in build than the woman filmed at the hospital gate with her supposed father. I am reasonably satisfied that all three sequences feature the same individual but welcome further observations.

[4] The attire of the man in the cap and dark body vest is very similar to that of the unidentified male of European appearance filmed wearing a radio headset at Atareb Hospital on 26 August 2013:

(Above) Man in combat fatigues, cap, dark body vest and carrying weapon boards ambulance at 8s in Video B; (Below) Unidentified male in combat fatigues and wearing radio headset, discussed in this previous post.

[5] Among numerous other points, questions remain over the nature of the munitions involved in the alleged incendiary attack.

Dr Saleyha Ahsan, one of the British medics featured in Saving Syria’s Children, has written:

Peter Bouckaert, of Human Rights Watch, believes the weapon was a ZAB incendiary device. It contains a jellied fuel which “adheres to the skin increasing the level of injury … it’s a nasty weapon.”

In his original BBC News report of 29 August 2013 Ian Pannell stated:

We don’t know for sure what was in the bomb, but the injuries and debris suggests something like napalm or thermite.

The Daily Mail cites a report in which Mary Wareham of the arms division of Human Rights Watch indicates:

the bomb weighed 1,100lbs and contained a fuel similar to napalm.

Posts on The Syrian Archive refer to a “phosphine chemical attack” while captions beneath images taken by photographer Amer Alfaj relate “opposition” claims of “Napalm and White Phosphorous”.

Others will be better placed to assess the consistency of these at least partially conflicting accounts and judge which, if any, may correspond with the munition remnants at the scenes, pictured below.

Images of munition remnants at the school, variously from Video CVideo DSaving Syria’s Children (41:33) and photographs taken by Dr Saleyha Ahsan and posted on The Phoenix Foundation website

Images of munition remnants at bombed building, Video A.

Note that in Video D – uploaded a day after the alleged incendiary attack – the munition casing is handled freely and that in Video A – apparently shot on the day of the attack itself – one of those present has no qualms about standing on a munition casing in his bare feet.