Over the past several years, Flight Safety Foundation has been pretty vocal on the broad topic of criminalization of human error. Things have been quiet on that front lately, so I thought I should provide an update. The focus of our recent efforts has been on the legal protection of safety information. Increasingly, voluntarily provided safety information is being used in court cases, sometimes even trivial cases, and surrendered to the general news media under freedom of information requests. We are not talking about the usual states with lax protections; we are talking about advanced aviation nations like Canada and the United Kingdom. These disclosures are not headline-grabbing events. They are quiet court rulings that don’t get much notice. But that is what makes us nervous. It is one thing to see confidential information disclosed in the emotional turmoil following a major accident; it is another to see it being casually offered up by the courts in the normal course of business.
The judges in these cases point out correctly that there is no protection for this information under common law or legislation. Let me make this point clear: Even though your regulator may have agreed to protect the voluntary information and promised not to use it against the person who made the report, that promise has no bearing on anybody else who might want to use it. Just about anybody who argues in court that they have a need for that information will be provided access to it.
That is the battle we are fighting today. The good news is that we are not fighting alone. International Civil Aviation Organization is forming a group that will target that problem, and produce, hopefully, viable international standards regarding the protection of safety information. This group will include industry, labor organizations, prosecutors, attorneys and governments. Based on our long history on this issue, the Foundation has been invited to participate, and we will play a prominent role.
We quietly have been working on this issue for almost three years. The Foundation is not a lobbying group. But several years ago, the U.S. Congress asked us for advice on this issue as they formulated the new Federal Aviation Administration authorization bill. We provided advice that, we think, strikes the right balance between the needs of safety and justice. We suggested that the disclosure of all safety information — including flight data, voluntary reports, data from cockpit voice recorders and flight data recorders, and so forth — should only be allowed if the prosecution can convincingly show that a fair trial cannot be achieved without it. That is the highest legal test than can be put in place, but it still allows disclosure if there is no other way to achieve justice. We also suggested that if that stringent test is met, the information should be subject to the minimum possible disclosure, reviewed only in the judge’s chambers. Beyond that, the information would remain sealed.
Having these protections placed in U.S. law would be quite an accomplishment, as well as providing a credible model for others to follow. We haven’t made a big deal out of the effort because we didn’t want to wake up the opposition, but now it is in the final throes of adoption. There is no guarantee what will come out of this. But let’s hope for the best.