The most effective way to protect the world’s vast store of confidential aviation safety information against court-ordered disclosures that threaten hard-won risk mitigations may be for countries/regions to enact specific laws, says Kenneth P. Quinn, general counsel and secretary, Flight Safety Foundation, and vice chair of the International Civil Aviation Organization (ICAO) Task Force on Safety Information Protection.1 His presentation during the FSF International Air Safety Seminar in October in Santiago, Chile, summarized key issues the task force has reviewed for two years and its expected finalization of recommendations to ICAO in January 2013.
The aviation industry is not immune to the application of criminal law, Quinn said, and only in recent years has it been possible to argue successfully that judicial authorities should not interfere either in accident investigations under ICAO Annex 13 or in the industry’s voluntary occurrence reporting programs. “We’re not going to have immunity nor should we,” he said. “We’re not going to have absolute protection nor should we. … We need to be sensitized to the judicial system. They need to be sensitized to us.” For example, if an accident investigation reveals evidence of willful misconduct, or evidence of gross negligence, appropriate administration of justice also can benefit aviation safety, he said.
The ICAO Air Navigation Commission established the multidisciplinary task force in December 2010 in response to the recommendation by William R. Voss, FSF president and CEO, during the ICAO High Level Safety Conference the previous April and the ICAO General Assembly’s instruction the previous October for the Council of ICAO to enhance protection of safety information using task force recommendations. Based on four prior meetings followed by stakeholder input in December, the task force is scheduled to deliver a report in January 2013 to Nancy Graham, director of the Air Navigation Bureau, containing recommendations for the ICAO Secretariat.
The task force has struggled to describe an ideal safety culture for all states that encourages the free flow of information without undue interference by judicial authorities or inappropriate actions by safety investigators, Quinn said.
Yet the collection and sharing of aviation safety information today are critical to risk mitigation throughout airline operations. Such programs enable aviation workers to “admit mistakes freely,” he said.
Task Force Context
An important issue is that in standardizing and protecting aviation safety information, the aviation industry also has to comply with privacy laws and permit the normal administration of justice, Quinn said. “And there lies the risk” to programs built on confidentiality, he said.
Disclosures have “serious consequences, and you’re collecting an ever-greater pool of information but you probably [don’t realize], or don’t fully realize, how little protection exists today. We’re focusing a lot on what had been the existing protection, and what bothers me and a lot of people is language” that often includes a highly ambiguous exception to the protection, such as “except where a review by an appropriate authority determines that release of confidential aviation safety information is necessary for the proper administration of justice.”
Judges without education on the safety issues often have been ready and willing to require release to prosecutors of confidential safety information simply because it sounds relevant to a homicide or manslaughter charge. “Courts, prosecutors and lawyers are likely to ignore non-binding attachments or guidance material that contain ambiguous, subjective exceptions,” Quinn said. “So it’s great to do [judicial] training, it’s great to have guidance material, but unless there is a law that the judges must follow, they will ignore it. Particularly if it’s international guidance material, they will ignore it.”
He cited the aftermath of the 2008 Spanair Boeing MD-82 accident, following a takeoff in which the flight crew inadvertently failed to correctly select flaps and slats, that included a leak to Spanish news media — and ultimately public Internet postings — of the final audio recording from the cockpit voice recorder (CVR). Now, Spanish authorities not only have dropped the negligent homicide charge against two maintenance technicians, he said, but “have developed an education and training seminar with their judiciary. They hosted a very large summit … and their civil aviation authority is in a dialogue with the national police, with the local police, with the judiciary … about the sensitivity now of aviation information and safety information.”
A Spanish judge — who became familiar with guidance to judicial authorities in European Regulation 996/2010 Articles 12 and 141 — also recently denied access to draft aircraft accident reports to lawyers pursuing civil litigation. In other examples, the expertise of the French aviation accident investigation authority was used not only in the criminal conviction of two airlines, the aircraft manufacturer and a mechanic but also in their successful appeal (see “Concorde Convictions Rejected,” p. 12). In Singapore, the chief prosecutor has facilitated specialization in aviation accidents among prosecutors as well as a dialogue between these prosecutors and accident investigation authorities in preparation for any future interaction, he said.
In light of other court decisions worldwide, Quinn and the Foundation have seen an ominous unwillingness among some judges to seriously consider legal arguments about safety-related industry practices. One judge ruled that existing national laws allowing discovery of information — despite the chilling effect on aviation community risk mitigations — outweighed all safety-related arguments. In one Canadian civil case, lawyers for a terminated flight attendant argued successfully that the national health and safety act required the airline to release to the plaintiff’s lawyers, for potential use as evidence, otherwise confidential information from a program similar to U.S. aviation safety action programs (ASAPs). In another recent Canadian civil case, the judge ruled that there was “[no] evidentiary basis for the suggestion that the disclosure of CVRs contents would have a chilling effect on pilot communications in the cockpit,” Quinn said.
A U.S. magistrate similarly said there was no common law privilege or specific statute enacted by the U.S. Congress to prohibit an airline’s ASAP database information from being used in court, he said.
Task Force Objective
The task force has been developing recommendations for new or enhanced ICAO standards and recommended practices to protect aviation safety information. A concurrent project is drafting a new Annex 19 in conjunction with the ICAO Safety Management Panel, he said. This annex — covering occurrence reporting and safety management systems — will assure protection of occurrence reporting information in addition to protecting accident investigation information under Annex 13.
The scope of anticipated recommendations likely will comprise accident investigation; legal enforcement or administrative actions (such as suspension or revocation of an airman certificate/license or issuance of a letter of correction or letter of warning); responses to subpoenas and requests under the U.S. Freedom of Information Act (FOIA) and its non-U.S. equivalents from news media, lawyers and the public; and company discipline of employees. Lawyers seeking in court to establish negligence routinely file FOIA-type requests for information from aviation occurrence reporting sources, Quinn said.
New judicial education includes the aviation industry perspective that courtroom use of confidential aviation safety information should be prohibited; “unless this safety information can only be obtained by going after this source — and unless it is necessary to ensure a fair trial or [prevent] a miscarriage of justice — it does not come in, it is protected,” Quinn said. Moreover, even if allowed in such circumstances, suitable safeguards must be in place such as de-identifying the information, issuing a protective order or providing an opportunity to seal the proceedings so the information is not made public except perhaps to the plaintiff’s lawyers. “Otherwise, it will have a tremendous chilling effect that will negate [airline risk mitigation] programs, will stop the programs; then we’ll go back to learning about safety through accident analysis,” he said (Table 1).
|Event Leading to Court Action||Affected Aviation Professionals||Concerns About Chilling Effect1|
Sources: Kenneth P. Quinn and AeroSafety World.
Brazil — September 2006
A business jet and a large commercial jet collided in flight, and the airliner crashed with 154 fatalities (ASW, 2/09, p. 11, and 3/08, p. 12).
|One military air traffic controller was convicted in October 2010 on a criminal charge but the military court acquitted four other controllers. The convicted controller was sentenced in May 2011 to more than three years of imprisonment but was eligible for community service, and another controller was acquitted on charges of harming national air transport safety. Two U.S. business jet pilots were convicted in May 2011 on criminal charges and sentenced to more than four years in prison. The judge recently commuted their sentences to community service, which has not been enforced.||The consensus of aviation safety specialists is that “information given voluntarily by persons interviewed during the course of safety investigations is valuable, and … such information, if used by criminal investigators or prosecutors for the purpose of assessing guilt and punishment, could discourage persons from providing accident information, thereby adversely affecting flight safety.”2|
Indonesia — March 2007
A large commercial jet was destroyed in a runway overrun with 21 fatalities (ASW, 1/08, p. 42). The non-judicial accident investigation concluded in part that the landing airspeed was twice the correct value and that the captain (pilot flying) ignored 15 warning alarms and the first officer’s repeated requests to go around.
|The captain of the accident flight was charged in February 2008 with six counts of manslaughter. In April 2009, the captain was found guilty of criminal negligence and sentenced to two years in jail. In September 2009, the high court overturned the captain’s sentence.||The exception within aviation safety specialists’ argument against the criminal prosecution of individuals is evidence of an intent to cause damage or conduct with knowledge that damage would probably result, equivalent to reckless conduct, gross negligence or willful misconduct. A chilling effect on other aviation professionals has not been not a concern in these rare circumstances.|
Cyprus and Greece — December 2008
A large commercial jet crashed after decompression and occupants’ loss of consciousness during cruise, with 120 fatalities (ASW, 1/07, p. 18).
|Authorities in Cyprus charged the airline and four individuals (former chief pilot, chairman, CEO and operations manager) with 120 counts of manslaughter. A Cyprus court in December 2011 acquitted the individuals; the attorney general has appealed. A Greek court in April 2012 sentenced three executives and an engineer to 123 years in jail, reduced to 10 years for manslaughter and negligence; appeal is expected.||The Greek court used a draft accident report and final accident report by the national accident investigation authority, along with testimony from an accident investigator, as evidence in the criminal case — contrary to prevailing international practices.|
Very liberal rules of discovery — that is, requiring defendants to turn over everything that may be relevant — prevail in trials worldwide. A better approach would be for courts to follow the standard of first considering the high-level consequences of releasing confidential aviation safety information, then deciding what can be used before a jury or a judge, Quinn said.
The European Union already has set a positive example with Regulation 996, in his opinion. “They are quickly coming up to speed on appropriate systems to have a dialogue of advance arrangements with the judiciary, with prosecutors, with law-enforcement,” he said, urging all states and regions to promote this type of dialogue regardless of task force recommendations, ICAO decisions or gaps in legislation and policies of local jurisdictions.
“If you can, formalize that dialogue in terms of a memorandum of understanding in an advance arrangement,” Quinn said. “Europe is providing a path forward. … [Regulation 996 Article 14] is prohibiting making the following kinds of safety information available: statements from safety investigation authorities, sensitive and personal information, information provided by third-party countries … draft reports or statements, … CVR transcripts, and communications between persons involved in the aircraft’s operations.”
This regulation allows disclosure of confidential aviation safety information if the benefits of the disclosure outweigh the adverse domestic and international impact on future air safety investigations. In a related favorable note, the Eurocontrol Just Culture Task Force recently demonstrated the value of creating a model prosecution policy and conducted a dialogue with prosecutors and law enforcement officials, discussing in part the prohibition of criminal prosecution absent evidence of willful misconduct or gross negligence.
In the years since the 2006 midair collision of a Gol Transportes Aéreos Boeing 737-800 and an ExcelAire Services Embraer Legacy 600, positive changes have occurred in Brazil’s standards for criminal prosecution in aviation accidents, Quinn said. The Chamber of Deputies in the Brazilian Congress “has passed recently legislation that would protect safety information and prevent its use in a criminal prosecution,” he said. As in Spain, Brazilian authorities are “reaching out and doing training of their judiciary, and they’ve had a success,” he said. “One of the judges that went through the judiciary [training] was asked to force an aerospace company to turn over safety-related information and — on the basis of that training — turned down the request.”
In the United States, protections of aviation safety information against these types of court-ordered disclosures remain relatively weak after recent efforts to strengthen them under the FAA Reauthorization Act of 2012.
Despite some solid FOIA protection, Quinn said, “Be aware that all of that information can still be subject to a subpoena and civil litigation in a wrongful death case. Be aware that a grand jury can subpoena all that information, and local law enforcement can get all that information.”
Typically, under FOIA-type legislation, voluntarily supplied safety information has been given greater protection than mandatorily supplied safety information, he said. “Europe is moving additionally to protect mandatorily supplied safety information. … That’s going too far, and we have to recognize that the public has a right to know, the media have a right to know. If there’s an accident, they ought to be able to pull up failures and malfunctions and defects. They ought to be able to pull up service difficulty reports. … There’s really no chilling effect because people have to file [these reports].”
- Kenneth P. Quinn is an attorney and partner, Pillsbury Winthrop Shaw Pittman. The IASS presentation reflected his views and those of Flight Safety Foundation, and was not made on behalf of the task force
- The title is Regulation (EU) No 996/2010 of the European Parliament and of the Council of 20 October 2010 on the investigation and prevention of accidents and incidents in civil aviation and repealing Directive 94/56/EC.