The aviation industry is the safest it has ever been, but must be improved to handle burgeoning demand. To get there, we must be more predictive and less forensic. Yet, national legal regimes and international guidance to protect safety information are lagging behind global efforts to gather, analyze and share voluntary and mandatory safety disclosures.
Basic safety management systems (SMSs) depend on a climate that is confidential, without fear of retribution. Yet the quantum safety leap envisioned by SMS is imperiled by the lack of legal protection from criminal attack, civil subpoena and administrative misuse.
As vice chair of the International Civil Aviation Organization’s (ICAO’s) Task Force on Safety Information Protection (SIP), I have worked with Chair Jonathan Aleck of Australia’s Civil Aviation Safety Authority and other distinguished professionals for the past two years. We reviewed existing legal and cultural regimes, trouble areas, international guidance and possible fixes. We met with prosecutors and listened to plaintiffs and defense lawyers, aerospace companies, cargo operators, business aviation and victims’ family groups.
We heard broad support for, and confusion over, notions of “just culture.” Some thought just culture a euphemism for a free pass, even for egregious error, while others had vastly different understanding, and sought “justice” after a crash. To be clear: No responsible observer believes the industry should be immune from the ordinary application of criminal law, especially for acts of gross negligence or willful misconduct. Where do we draw the line?
These are tough calls, but it’s clear that existing legal protection is inadequate to ensure the confidentiality of safety information. Exceptions that permit disclosure for the “proper administration of justice” are too vague and too subjective. Existing guidance is either misunderstood, or just ignored, inadvertently or purposefully.
As to solutions, no one size fits all. Many jurisdictions are loathe to approach their judiciary or law enforcement about training. Others seeking confidential treatment run up against government transparency. Most, however, see great value in advance arrangements, cooperative and respectful dialogue, and protective mechanisms to prevent a chilling effect, if required to provide safety information in legal proceedings.
Current ICAO guidance is intended to strike a balance that is not easy to achieve. When is the use or release of confidential safety information necessary? Who decides? If safety and occurrence reports are used in civil litigation, criminal prosecutions or administrative enforcement proceedings, will people be less likely to report? What are these appropriate uses?
The ICAO SIP Task Force has wound up its efforts. It will now be up to the Air Navigation Commission and the Council itself to decide on changes. In the meantime, contracting states are pushing the throttle forward. Brazil is considering new legislation and training its judges. The European Commission has promulgated and proposed several directly applicable laws, including its Regulation 996/2010 on accident investigation, and in December 2012, on occurrence reporting, to encourage the collaborative advance arrangements and safety information protection. New FAA reauthorization laws further protect voluntary reporting systems from freedom of information–type disclosure.
The top priority for states should be to create an environment where safety information can be shared without fear of retribution. This includes ensuring the availability and integrity of future accident and incident reporting and voluntary reporting systems, and swift action to prevent their misuse. Lives depend on it.