A new challenge for confidential safety reporting

[J.O.]

County: Need access to airline's confidential safety reports

Looks like this is a membership site, so in case the article disappears:

Attorneys for Milwaukee County say they need to review normally confidential reports from a federal airline safety program to learn the truth about why a Midwest Airlines plane was heavily damaged in a collision on a taxiway at General Mitchell International Airport in 2005.

In response to a Midwest Airlines request that a judge seal the materials, attorneys representing the county in a lawsuit over the collision insist "there is no justification for withholding evidence" that may exist in the reports from the Aviation Safety Action Program.

The case concerns $410,000 damage sustained by a Midwest Airlines plane at General Mitchell International Airport in Milwaukee on Aug. 31, 2005, when the aircraft on a taxiway struck a truck that was used in a weed-spraying operation.

Midwest Airlines filed the lawsuit in U.S. District Court in Milwaukee against the county, the Federal Aviation Administration and Fahrner Asphalt LLC, of Plover.

Obviously my main concern is with yet another attempt to open up confidential safety reports in a civil law suit. But the other problem with this is that unless they get access to all ASAP reports that have been filed concerning operations at Milwaukee airport, and not just those filed by pilots from Midwest Airlines, they really won't know if there was a precursor to the incident or not.

[Vsplat]

This trend may eventually need a pressure release mechanism. I wonder if the courts, TSB, NTSB et al could establish an infrastructure wherein the courts identify an area of concern and the experts tell them if it was or was not relevant.

Otherwise, I feel it is only a matter of time before this stuff gets handled in raw form by opportunistic non-experts. After that, the CVR, FDR and FOQA readers will degrade rapidly into tools of witch trials, with all of the attendant counter steps.

In my opinion

Vs

[Don Hudson]

This trend may eventually need a pressure release mechanism. I wonder if the courts, TSB, NTSB et al could establish an infrastructure wherein the courts identify an area of concern and the experts tell them if it was or was not relevant.

Otherwise, I feel it is only a matter of time before this stuff gets handled in raw form by opportunistic non-experts. After that, the CVR, FDR and FOQA readers will degrade rapidly into tools of witch trials, with all of the attendant counter steps.

The courts are not the only ones. To my knowledge, CUPE after at least five years, is still attempting through the Canadian courts to gain access to ASRs which deal with turbulence so "our own" can be part of the same problem. I would like to hear from anyone here who can shed further light on this - perhaps the case has been dropped, or is it still being pursued?

The entire matter of the importance to the safety process of confidential reporting is vastly misconceived and under-appreciated.

The societal and legal trends are clear however. Prosecution is more direct in terms of compensation for loss even as it fails utterly in comprehending how the safety process works in accident prevention. If safety programs are to survive at all, safety information must be protected in the same way that the TSB Act protects the CVR, (and the courts even compromised that protection in the PropAir case).

In a cooperative effort, AC and ACPA tried to do this with detailed input (including language) into Bill C-6 (now C-7) with no success. We were assured that there were "sufficient processes" to protect the data from inappropriate production demands by the courts but it remains a fact that there is nothing in law to do so - in fact, there are clauses which provide the courts with powers to demand access to safety information "in the public interest", a very broad brush indeed. It has already happened at least once.

Canada's SMS initiative is based almost entirely upon the robust collection of flight safety information and data such as FDA/ASR/LOSA/AQP data yet there is neither protection for the data from specious demands for production, nor are the individuals who have access to and use such data for safety purposes indemnified by the AA. In the US at least, the data is somewhat protected under the FAA's FOQA legislation brought in about six years ago.

I wonder if a pressure-relief process could realistically be established, which employs aviation safety experts to discern whether safety information is too sensitive to be released to non-safety interests in order to merely satisfy the "public interest" and the concurrent paramount need to "protect the Minister"? I can see significant problems with any such board of experts. I think the legal protection of the data, though unfortunately less realistic now, is the better way.

In my opinion.

[Moon The Loon]

A question comes to mind regarding admissability, liability and credibility of ASR's in general. Simply because a piece of paper, albeit a company form or otherwise, contains hand-written text on it does not necessarily make the information true, nor does it completely identify the author, as nothing has been either witnessed nor notarised. Hence my wondering about admissability.

Is the writer of the ASR liable for the text written as his/her perception of an event? If the writer did not have access to other facts, how can the writer be held liable for facts left out or improperly observed or documented by him/herself?

What about credibility in the case of two conflicting versions of the same event (whether it be pilot vs cabin crew, maintenance engineer vs pilot, etc)? Will the pilot automatically be deemed to be the correct authority when it benefits a "legal interpretation" or will the pilot be held to account when someone else's version serves the legal community best?

If legislators, regulators and experts in the field of jurisprudence don't recognize the dangerous and retrograde road they are following with frivolous litigious actions as in Milwaukee, the advances in aviation safety programs from the last 50 years may be awash.

[Don Hudson]

Absolutely superb post, mtl - excellent points, excellent questions indeed.

Exactly the same principle applies to flight data whether its QAR (FDA) data or data from the DFDR.

[DEFCON]

"A question comes to mind regarding admissability, liability and credibility of ASR's in general. Simply because a piece of paper, albeit a company form or otherwise, contains hand-written text on it does not necessarily make the information true, nor does it completely identify the author, as nothing has been either witnessed nor notarised. Hence my wondering about admissability.

There's at least a couple of lawyers lurking about the site and I'm certain they might provide a more complete answer however, the answers to the above all rest in the hands of the presiding Judge.

Is the writer of the ASR liable for the text written as his/her perception of an event? If the writer did not have access to other facts, how can the writer be held liable for facts left out or improperly observed or documented by him/herself?

What about credibility in the case of two conflicting versions of the same event (whether it be pilot vs cabin crew, maintenance engineer vs pilot, etc)? Will the pilot automatically be deemed to be the correct authority when it benefits a "legal interpretation" or will the pilot be held to account when someone else's version serves the legal community best?"

There's at least a couple of lawyers that lurk about this site and I'm certain they could provide a more complete response however, the simple answers to the above all fall within the purview of a presiding Judge.

[J.O.]

I can't believe I'm about to say this, but if we are to address this issue credibly, shouldn't we consider all sides of the issue. Let's not forget that the news story that I quoted is the direct result of a suit filed by Midwest Airlines against the airport operator (the county) and the operator of the spray vehicle. While I haven't seen the statement of claim, I suspect there are accusations of negligence or a lack of safety processes and due diligence against the defendants. I'm sure that Midwest's legal representatives will engage in a discovery process to support their claim. In the spirit of "what's good for the goose should be good for the gander", is it not fair for the defendants to ask if Midwest had past reports of safety concerns that, if properly vetted, could have helped to prevent the collision between the aircraft and the sprayer?

[Don Hudson]

J.O.

In the spirit of "what's good for the goose should be good for the gander", is it not fair for the defendants to ask if Midwest had past reports of safety concerns that, if properly vetted, could have helped to prevent the collision between the aircraft and the sprayer?

An important point and distinction.

I would like to comment for others who may be watching this unfold:

First, as safety specialists we know the data-door swings both ways and know that there are no boundaries in terms of who has the information - defendant or prosecution. "Sauce for the goose" is indeed the expectation, although it will not always be the reality. That is why we do not permit individual crews access to their data to "back up" claims of one or another operational item. Of course, once that door is open it is open for all agendas and not just the original case that opened the door. (I am not convinced that CUPE even realizes this).

Second, the key phrase is "properly vetted".

If reports were made and either ignored by one management group or the other or were acted upon again by one management group or the other and it can be demonstrated as such, not necessarily by entering actual ASR safety papers into evidence but through a process of mutual viewing by mutually-agreed-upon experts, that an agreed-to summary of the information can be entered, then the process may satisfy the requirements of evidence to the point of demonstrating that due-diligence was or was not exercised. Again, under the heading of 'be careful what you wish for', that door swings both ways once opened.

That protects the data and the programs involved but permits the process to move forward in a specifically-defined manner. That manner must be the subject of laws and not mere government or TC "policy".

Otherwise, the problem is of course, "mission creep" and "subpoena creep".

Its a curiosly multi-faceted issue where, by definition, each side has both a positive and a negative value depending upon whether you are the target or the shooter. And those positions can switch back and forth with the wind...

It is the fundamental reason why safety programs and investigative boards are a body unto themselves, remaining independant of the judicial and political process. It is absolutely as it ought to be. Otherwise, the process is forever tainted with "who", not "what".

Better to leave such processes "in the bottle" where the safety experts can be consulted and the programs and their safety products remain well clear of the courts.

[DEFCON]

Don; I agree with JO. The door does swing both ways.

"then the process may satisfy the requirements of evidence to the point of demonstrating that due-diligence was or was not exercised."

Evidence and the rules governing its acceptability to the Court is found in the "Canada Evidence Act". The process you've described would be considered hearsay evidence I believe.

[Don Hudson]

Thanks DEFCON;

Re "hearsay" - perhaps; I'm not a lawyer and don't know the subtleties and interpretations. I hope we never have to find out.

[Moon The Loon]

Hey J.O.:

On the surface, your point of view is hard to argue against. But deep in the trenches of litigation lies the premise that, in our confrontational system, both sides of an issue can't be right. Therefore, the representatives of each side should and shall make every effort to strengthen their side of an argument because one of them is going to lose his/her argument, regardless if they were right or wrong. Enter the "better lawyer".

The real danger happens after a judgement. Then you have precedent. I'm no lawyer but I understand the principle of precedent carries a lot of weight in any legal argument. Given that someone's ASR may have actually created a precedent by its inclusion in the "better lawyer's" argument is the fear to which I am pointing. Those are the flood gates that I believe could shut our safety reporting system down overnight.

The shutdown may already be in progress south of 49 for all we know. Time will tell.

[J.O.]

Hi Moon. I agree with you as well, and I am not particularly pleased that the ASAP books are again being opened to legal scrutiny because of a civil law suit.

But here's the thing. We all recognize that effective safety improvements can't be made in silos. They come about when the whole system is changed. After Dryden, it may have been enough to prevent a repeat of that occurrence by simply implementing a regulation that prohibited flying with contaminated wings. Instead, the industry went through what essentially amounted to a teardown inspection that resulted in over 200 recommendations for safety improvements. Most of them still affect how we operate today.

If the folks at the Midwest really cared about the safety improvements and accident prevention that ASAP is designed to facilitate, instead of a law suit, they'd be engaged in a dialogue that is focussed on mitigation to avoid a repeat of the aircraft collision with the sprayer. But because of a financial loss, they file a law suit against those who allegedly caused them financial harm. Let's not forget that the accident aircraft was under the control of a Midwest crew when the collision happened. Maybe they could have done better, or maybe not. But when you're an active participant in the system that experienced the accident, any attempt to assign blame on someone else inevitably opens you up to a deeper scrutiny of your own operation. Since ASAP reporting is a commonly used component of safety management at Midwest, the data from that system could show that the next accident was not only waiting to happen, but had been identified through that system. Revealing that fact could help the plaintiffs prove that they were not the only contributors to the accident. So as much as I wish there was another way, I get it when the defendants lawyers ask to see the ASAP data, and I get it when the judge says yes.

Jeff

[Don Hudson]

Jeff;

So as much as I wish there was another way, I get it when the defendants lawyers ask to see the ASAP data, and I get it when the judge says yes.

Again, well stated. The point is in fact, crucial for any organization that thinks SMS is simply having the right documentation and a few days' "safety training" for managers in the same way (and with the same attitude) that, for example, harrassment training is given...

So, acting on data is the key; taking data seriously which first means actually believing in its veracity and then supporting the program even if it isn't "commercially viable" . Then acting in a timely, appropriate open way such that due diligence is done and seen to be done by employees thereby setting the example and sending the signal to all that high-risk operations will not be tolerated by the leadership. All this, so if the books are ever opened and the executives are in the oak chair, there is corporate due diligence and the best response possible even under the worst of all possible circumstances.

Seems simple enough and reasonable enough to me...I wonder why it is so difficult for some?