Use of recorded safety data by litigators

[Moon The Loon]

From the current issue:

http://flightsafety.org/aerosafety-world-magazine/march-2011/protecting-safety-data

Protecting Safety Data

By William R. Voss, President and CEO, Flight Safety Foundation

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.

[Don Hudson]

From the current issue:

http://flightsafety.org/aerosafety-world-magazine/march-2011/protecting-safety-data

Protecting Safety Data

By William R. Voss, President and CEO, Flight Safety Foundation

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.

Moon, thanks for posting this.

It may not be sexy or headline-grabbing but if this continues, so will the headlines that WILL grab attention - the wrong kind.

The fatal accident rate is already showing signs of turning upwards, from its historically low trend. Use safety data to prosecute individuals and you can kiss safety reporting programs and learning from data good-bye and watch the trend slowly return to kicking tin known as tombstone safety.

I know you know all that stuff, but you'd think no one had ever thought of the outcomes the way Canada has ignored the need to protect the very data that Transport Canada requires airlines collect under TC's SMS initiative. The Minister "assured us" when we submitted language to amend the Aeronautics Act around 4 years ago, that such data would be, and always has been, protected.

None of us believed this statement and Canada has since proven that "the public interest" and the courts can indeed obtain data and use it in court. I know for a fact that the CVR from the Propair accident at Mirabel was played in a public courtroom and not just in camera.

I like SMS. But Canada has no right to brag that it is a leader in SMS when it will not protect flight safety data.

Been saying this for 25 years. Like fatigue issues, there are known, good reasons for a government to act. But neither Liberals nor Conservatives have lifted a finger on these two issues.

Nuts to politics and politicians.

Don

[Moon The Loon]

In most accidents those who cause the accident are held to be at blame. Why should this be any different for any group?????

And therein lies the heart of the issue. Those who "cause" the accident.

Your attitude is 30 years old.

There is much better coffee to enjoy.

[Don Hudson]

In most accidents those who cause the accident are held to be at blame. Why should this be any different for any group?????

Wow.

[J.O.]

Malcolm, if you've spent any time reading the multitude of past threads on this issue, and I'm pretty sure you have, then you will have read multiple salient comments from Don and others on the complexity of the issue. So I am somewhat surprised at the simplicity and naivety of your post.

To put it succinctly, we are not talking about protecting those who wilfully break the rules and cause accidents. We are talking about the safety benefits of learning lessons from people who, while trying their best to follow the rules, have made errors that resulted in an increase of risk and sometimes led to accidents. There is no such thing as an error-free human being, particularly when they are placed in the midst of a complex system where things change, often at the blink of an eye. Punishing "honest" errors does not improve safety. The next person doing the same task is just as likely to commit the same error, so punishing his predecessor will not act as a deterrent.

I could say much more but I've got to go. Suffice to say that the FSF is on the right track here, and I hope those who count will listen.

[Don Hudson]

malcolm;

I understand what you're saying and of course, it makes sense and is wrong. Unfortunately, most lawyers, passengers, courts, some country's regulators, some airline managements and even some pilots still think the way you do - it's more unusual to see these days as more learn how the aviation industry's fatal accident rate has plummetted over the past fourty years but resistance takes many forms.

Though you may not have debated it with points to support your views or even read it, I've written enough over the last two decades on various iterations of the AEF to point out that that way of thinking changes nothing except the fatness of the wallets of the first group and the legitimacy of need to punish-the-perp for the second group.

Both points of view assure that learning and change will not occur except at the pointy end of a lawsuit, and that others will have a greater chance of going through the same experience of losing loved ones in a fatal accident. If you want just one example of how that process works, read about the DC10 cargo door and how Douglas Aircraft behaved throughout the entire tragic story. It compares with anything you may know about how organizations behaved before and even after October 2008 - there is little difference, including the condition of the wreckage.

In high risk enterprises such as transportation, oil well drilling, nuclear energy and medicine, learning to avoid human factors and organizational errors reaps benefits far beyond that extracted by "blaming the perp" who for you, are the cockpit crew.

If you truly believe that all this is a set-up to avoid blame for a crew involved in an accident and give all crews a get-out-of-jail card, you need to do some reading.

Regarding the statutes which are quoted, the same is stated for aviation. So explain to me the justifications for what Canada has done, once in the Propair case where th CVR was played in open court and once where the courts prosecuted the pilot in the Winnipeg fuel-exhaustion case.

There is either protection against using flight safety information for prosecution or not. Canada, joining France, Italy, Korea and a few others, has already signalled which way it thinks. And now, with rare public comment, the Flight Safety Foundation has named Canada in their communication. So much for such statutes.

respectfully,

Don

edited to add comments

[boestar]

Are we not taught in our Human factors training that most incidents and accidents are a result of several failures leading to the final outcome. For any single step there is a chain that must be broken. How can blame be placed squarely on the individual in control at the time of the outcome?

While I am sure that some of the links could have remained intact by different actions on the part of any individuals in the chain, including the pilot, why should the pilot bare the blame?

Some failures along the route could be:

Manufacturer of pitot tubes faulty Quality Control

Employee making Pitiot tubes making an error

Employee installing pitot tubes making error

better weather information from weather service (meteorologist error)

better routing due to weather (ATC)

pilot weather radar interpretation

pilot action after failure

I am sure there are many more along the route. The point is that no one person can be held criminally responsible for situations beyond his/her control. The root cause determination should be where the chain began to fail and should be the concentration of efforts to correct.

Each and every individual reacts to a situation differently and as such some outcomes are better than others.

I watched the MAYDAY episode on this accident and there was some time spent on the pilots reaction to the situation and the loss of airspeed. They stated that with a specific stab setting and throttle setting the aircraft would have settled into a specific speed range and remain in flight and under control. This is an easy thing to say as an armchair quarterback with only part of the data. Sure in clear air and calm wind that may work well but in the heart of some pretty nasy weather who is to say what transpired on that flight deck UNTIL WE GET THE BOXES.

Malcom is correct in the fact that no one group should be held criminally responsible for the accident as there very well could have been many more involved. Finding an individual or group criminally liable for the accident does absolutely NOTHING for flight safety and only lines the pockets of lawyers and victims families.

[Kip Powick]

Sooooo you have Roger Ramjet, an excellent pilot who was trained to very high standards and is considered by his superiors and his peers to be an exceptional pilot. He amasses a few thousand hours on various types and is presently employed as a Captain on an RJ....

His love life has been no screaming hell for the past few years but recently he found "Miss Lovely" and is presently engaged to marry. She, like him, waited for a few decades before considering a marriage and is presently the owner of a 100 acre ranch 50 miles north of the airport.

Roger and his copilot are tasked to ferry an empty RJ from YOW to home-plate. Enroute, they decide to do a fly-by over Miss Lovely's farm.

Roger got a little too engrossed in the farm house, succumbed to target fixation, went too low and took out the top floor of the building......in doing so he lost control, crashes, however both pilots managed to walk away from the debris located about 1 mile west of the house. Unfortunately, Miss Lovely's mother who happened to be in the upstairs bedroom was killed when the first floor of the house was destroyed.

Now does this scenario warrant criminal charges against the pilot(s) .........or is this a Flight Safety issue where someone other than the pilots have to be apportioned part of the responsibility??

Curious and as Don says, this subject ,(pilot responsibilities/flight safety/circumstances/etc.,) have been beaten to death on this forum as well as many others BUT, in my mind there has to be a point where "Joe Pilot" has to carry the can for the accident HE created.

.

[J.O.]

That's too easy Kip. Clearly we are looking at a hypothetical involving wilful disregard of an air regulation (low flying). It's the aviation equivalent of driving 100 in a 50 zone and causing an accident. He deserves to be prosecuted.

But that is not the type of scenario that the FSF is trying to address.

[boestar]

Willful negligence and human error are 2 completely different things. The accident would never have happened if the negligence was removed there fore the captain is culpabl;e.

[Kip Powick]

Willful negligence and human error are 2 completely different things. The accident would never have happened if the negligence was removed there fore the captain is culpabl;e.

Jeff/boestar...........OK..fair enough, that one was pretty obvious but......I honestly can't remember............ but what was the result of the investigation with the fellow who ran out of gas in the YWG area??

[Southshore]

Wow.

Dons shortest....post....ever.

[Don Hudson]

Dons shortest....post....ever.

'bout time, dontcha think?!

D.

[Don Hudson]

So what does everybody think about this case. To me it appears to be extreme (should be suspension not criminal charges) but I have been wrong before and will be again.... All ended well but if the aircraft had a problem and needed to return to the airport , the outcome, could likely have been very different.

First, from a flight safety POV, this is a rule-based violation. The pilot knew his company policies and decided to depart, likely to keep schedule and to get the airplane home or to its next destination for the next morning's departure. It's against company policy and the company should be the one disciplining the pilot.

Second, air reg violations do occur and pilots, when caught and charged, have to answer for them, sometimes in court. It's the law and it happens. The question here is, what on earth is the Civil Aviation board in New Zealnd doing prosecuting a pilot over his company procedures? How does that happen?

Even though the OpsSpec documentation is approved by the regulator, it isn't law - it is approved under the law and it is policy. In fact, bluntly speaking, if crews held to the letter of their company's OpsManual, the delays would be incredible, the system would eventually become paralyzed by due process and there would be accusations of "work-to-rule" from everywhere.

But that's another issue...the system works, and sometimes guys break a regulation and are charged and should be - there is no "get out of jail" for breaking the regs and doing wrong things intentionally. Turn in too close to the marker, violate a noise regulation, and you can be toast...(ahem)... Depart VFR from an unlit airport before legal sunrise or after legal sundown and you're toast, period and so you should be. This pilot was legal so I have a strong objection to the basis of this case for reasons stated, but this isn't what we're talking about here in terms of courts, accidents and prosecutions using safety information which is required to be collected under SMS.

There is a huge difference between charging a pilot under the CARS and using a pilots cockpit voice recordings in court to prosecute an individual case. In fact, just the release of the CVR is illegal in Canada, (TSB Act), but the courts did it. I have no idea why Canada would go down this road, or how you defend yourself against that kind of legal intervention, especially when you're dead.

When it is the "public interest" that supercedes the law and provides for the use of flight safety information in legal proceedings, it is truly, deeply ironic that it is the public interest that is harmed in the long run because of the damage done to the safety reporting and data-collection process. Shut down the paths of information, and learning stops, awareness stops, and bad things start to happen.

Also I think I smell something in this New Zealand story. Perhaps they're trying to deal with a pilot who is known to take risks? Perhaps there is the scent of 'bad blood' between the airline and the regulator? Doesn't matter - it's a whole different matter than what we're talking about in the original post.

Cheers,

Don

[Moon The Loon]

The question here is, what on earth is the Civil Aviation board in New Zealnd doing prosecuting a pilot over his company procedures? How does that happen?

Even though the OpsSpec documentation is approved by the regulator, it isn't law - it is approved under the law and it is policy. In fact, bluntly speaking, if crews held to the letter of their company's OpsManual, the delays would be incredible, the system would eventually become paralyzed by due process and there would be accusations of "work-to-rule" from everywhere.

That was the first question I had about Malcolm's post as well. Who here has not "bent" company rules (without violating a Regulation) in order to get the job done, safely?

Interesting point, Don about the release of CVR data being contrary to the TSB Act. Definite grounds for appeal should a conviction be the result.

Now I'm going to the DoJ site to read the TSB Act...

[Moon The Loon]

Pretty dry stuff, but here it is, from The Canadian Transportation Accident Investigation and Safety Board Act, S.C.1989, c3.

( http://laws-lois.justice.gc.ca/eng/acts/C-23.4/ )

The "privilege" in respect of "recordings" is addressed in Section 28 of the Act. Sub-section (1) does give in-camera access to recordings with restrictions. Sub-section (7) PROHIBITS as follows:

"An on-board recording may not be used

against any of the following persons in disciplinary

proceedings, proceedings relating to the

capacity or competence of an officer or employee

to perform the officer’s or employee’s

functions, or in legal or other proceedings,

namely, air or rail traffic controllers, marine

traffic regulators, aircraft, train or ship crew

members (including, in the case of ships, masters,

officers, pilots and ice advisers), airport

vehicle operators, flight service station specialists,

persons who relay messages respecting air

or rail traffic control, marine traffic regulation

or related matters and persons who are directly

or indirectly involved in the operation of a

pipeline."

There are key words here, the first being "against". This could feasibly be interpreted as not prohibited if not being used "against" a named function. However, later in the phrase, "...or in legal or other proceedings," would seem to rule out ANY disclosure or use in courts.

"Namely" specifies persons performing those duties and includes aircrew members, not just pilots.

So, lawyers in our midst, how do courts get around these provisions laid out in this Act?

[Moon The Loon]

Further, and the discussion gets even muddier, there is a Railway Safety Act where Safety Management Systems are spelled out in detail, yet there is no comparable Air Safety Act, nor even mention of SMS in the Aeronautics Act. TC seems to have left SMS to regulatory havens, which may not even be legal if not sanctioned by an appropriate Act.

Now THERE's another discussion

[CD]

Further, and the discussion gets even muddier, there is a Railway Safety Act where Safety Management Systems are spelled out in detail, yet there is no comparable Air Safety Act, nor even mention of SMS in the Aeronautics Act. TC seems to have left SMS to regulatory havens, which may not even be legal if not sanctioned by an appropriate Act.

Now THERE's another discussion

Moon...

Yes, we've had the discussion here on a number of occaisions in the past. For example:

Criminalization of Accident Investigations

Courts Using Flight Safety Information as "Evidence" in Prosecutions The Future of the CVR?

We also had a discussion regarding the proposed changes to the Aeronautics Act, one of which would have related to safety data. However, the changes have never made it very far in Parliament before there was either an election called, change in government or other groups lobbying against various parts of the proposed changes. As I recall, the changes were introduced as Bill C-6 twice, Bill C-7 once and still no progress. So, the Act remains unchanged.

Proposals to amend the Aeronautics Act - (as revised in response to consultation comments - 11 May 2001)

AA Proposal: Collection, analysis and reporting of safety data

[Don Hudson]

Further, and the discussion gets even muddier, there is a Railway Safety Act where Safety Management Systems are spelled out in detail, yet there is no comparable Air Safety Act, nor even mention of SMS in the Aeronautics Act. TC seems to have left SMS to regulatory havens, which may not even be legal if not sanctioned by an appropriate Act.

Now THERE's another discussion

We tried Moon...management and association members, thinking about what SMS needed, what the pilots needed, what the airline needed in terms of the SMS requirement for data collection. We brainstormed, word-smithed for months, discussed the matter twice with high-level bureaucrats within the Ministry, and when it came time to act the entire input, requested as comments on changes to the Aeronautics Act, was completely ignored.

The result is, the Railway Act may define what SMS is all about, but the Aeronautics Act leaves the use of such data up to the lawyers and notions of the "public interest". Now we were told at the time that the Minister's discretion was such that any such use would have to go through many, many layers of protection before ending up before the courts, and I quite frankly believe that because I've seen it work that way. But Minister's change and so do governments; we thought that addressing the matter as part of the development of a mature SMS program in Canada would be welcome, especially coming as it did from a broad range (more than just one airline) of representations. It wasn't.

Notwithstanding all of this, with individual airlines in the US, we have seen some associations withdraw or threaten to withdraw their concurrence and cooperation with regard to collecting safety information under ASAP. I have heard rumblings of cancellations of FOQA Programs. This is different than the issue under discussion but no less disturbing. Withdrawal neither resolves the legal/criminal issues nor the speculative notion that individual airlines intend to use such data against individual pilots.

I think such actions as withdrawing/cancelling such programs would be a huge professional blunder and a serious strategic risk - such non-participation in SMS Programs would not bode well for any group which has withdrawn from these programs should an accident occur.

What is to be accomplished by such actions? Where is the proof that such drastic action is indicated? What is the expectation of change, or is such action just intended to return the industry to the "kicking-tin" method of accident investigation?

To me, this reaction is participating in, and giving in to that small faction, one or two individuals I'm sure, which exist in every airline managment who would rather focus on "who", not "what".

In my experience, there is great justification for continuing to collect data and use it as intended. In fact, I would challenge those who believe that the process is being compromised by airline managements for the purposes stated and not as flight safety information, to provide one example of an airline management using the data in this way. Stating that there is a risk of such use isn't sufficient - there is always the risk and it isn't as though pilot associations entered such agreements eyes-closed.

It's complicated...

But the two issues are separate. We must do all possible to direct the use of flight safety information to the use intended, notwithstanding the two cases in Canada and the world-wide trend towards the criminalization of incidents and accidents. The data is protected in the United States. Why can't we do the same in Canada, for all flight safety information and not just the CVR?

Don

[CD]

Pilot found guilty of carelessly operating aircraft

3:33 PM Friday Mar 8, 2013

The Auckland-based Pacific Blue pilot accused of carelessly operating an aircraft flying from Queenstown to Sydney in June 2010 has been found guilty by Judge Kevin Phillips.

The written decision comes after a prolonged defended hearing in the Queenstown District Court, which was held over two weeks each in March and July last year, with the final day of the hearing last September.

In his written decision, released today, Judge Phillips said he was satisfied "no reasonable or prudent pilot" faced with the conditions the pilot - who has interim name suppression - encountered, would have commenced a "take off roll".

Taking into account the Evening Civil Twilight requirement, poor light, cloud cover below the minima and cross wind levels, including gusts, Judge Phillips found the pilot did not exercise the degree of care and attention a reasonable and prudent pilot would have exercised on June 22, 2010.

"I am satisfied that the defendant... was careless in his manner of operating the aircraft.

"The defendant ignored the mandatory requirements and, in their place, used his planned self designed contingency.

"I have found against him on that issue.

"I consider the findings of fact that I have made establish clear fault on the part of the defendant.

"Indeed, on my findings, the defendant's fault is self evident in each and every particular."

A sentencing date is yet to be confirmed.

The New Zealand Air Line Pilots' Association (NZALPA) issued a statement saying it was disappointed with the verdict.

"The three year judicial process has been very difficult for the pilot and the family. NZALPA does not wish to make any further comment as this may prejudice the pilot's ability to launch an appeal."

[Bryon Mask]

Hi Don; Unfortunately the CVR data is no longer really protected in Canada. You are correct that the Propair accident was the first example of the CVR data being released to the public. It is my understanding that the judge agreed to release the CVR as a request to the next of kin. I won't go into the details. The TSB has the power to release ATC or CVR conversations if they hold a public inquiry and if they deem the recordings to be relevant to advancing flight safety. However in the case of Air France 358 ( Overrunn in YYZ) there was a petition to have the CVR released for litigation purposes and Justice Strathy who chaired the case ruled the CVR was not protected under the Act and released the CVR recording. ACPA and ALPA© were given "friends of the court" status and I attended the trial on behalf of ACPA. Part of the judge's decision was based upon the fact that Canada did not file a difference to Annex 13 (which the USA did) and therefore Annex 13 trumped the CASB provision. Needless to say whenever the next major accident occurs in Canada there is no guarantee that the CVR will be protected in my opinion.

[J.O.]

Bryon, has there been any discussions (that you are aware of) regarding the re-filing of that difference with ICAO?

[Don Hudson]

Hi Bryon - thanks for providing this information. As you'd expect, I have nothing to add to my previous comments.

The SSFDR, solid-state flight data recorder is no longer an investigative tool after the accident. Today the data is used in accident prevention in FOQA/FDM/FDA Program and it works. The industry is safer today in part because of these kinds of data programs.

I think this turn in priorities has the potential for reducing air safety in Canada. Already, many in Europe will no longer report safety issues for fear of liability and prosecution. The willingness to take this route appears to be taking present levels of air safety in Canada for granted. My concern is, in addition to this chill in reporting, this ruling has the potential for threatening the existence of FOQA/FDM/FDA Programs, for if the CVR is no longer protected, neither is FDM data. When adopted and taken seriously by airline managements and trusted by pilots these programs work well in enhancing air safety, and on a number of different levels.

J.O. I hope there is contemplation of such a re-filing of difference with ICAO.

[Don Hudson]

Malcolm;

Thank you for this article. I'll give it a good read. Have you read it?

For reference, the author is not an aviation person nor a pilot but a lawyer who has specialized in Public International Law. This is the author's thesis for a Master of Laws (LL.M) degree at the Universiteit Leiden (University of Leiden, in The Hague and was the 2010 winner in the EALA essay competition.

For further reference, here is the relevant ICAO Annex 13 Chapter:

Chapter 5 ICAO Annex 13 (Ninth ed. July 2001)

. . . .

Non-disclosure of records

5.12 The State conducting the investigation of an accident or incident shall not make the following records available for purposes other than accident or incident investigation, unless the appropriate authority for the administration of justice in that State determines that their disclosure outweighs the adverse domestic and international impact such action may have on that or any future investigations:

a) all statements taken from persons by the investigation authorities in the course of their investigation;

b ) all communications between persons having been involved in the operation of the aircraft

c) medical or private information regarding persons involved in the accident or incident;

d) cockpit voice recordings and transcripts from such recordings; and

e) recordings and transcriptions of recordings from air traffic control units; and

f) opinions expressed in the analysis of information, including flight recorder information.

5.12.1 These records shall be included in the final report or its appendices only when pertinent to the analysis of the accident or incident. Parts of the records not relevant to the analysis shall not be disclosed.

Note 1.— Information contained in the records listed above, which includes information given voluntarily by persons interviewed during the investigation of an accident or incident, could be utilized inappropriately for subsequent disciplinary, civil, administrative and criminal proceedings. If such information is distributed, it may, in the future, no longer be openly disclosed to investigators. Lack of access to such information would impede the investigation process and seriously affect flight safety.

Note 2.— Attachment E contains legal guidance for the protection of information from safety data collection and processing systems.

ed. To assist in reading the paper Malcolm has cited, Add Annex 13, Attachment E:

1.1 The protection of safety information from inappropriate use is essential to ensure its continued availability, since the use of safety information for other than safety-related purposes may inhibit the future availability of such information, with an adverse effect on safety. This fact was recognized by the 35th Assembly of ICAO, which noted that existing national laws and regulations in many States may not adequately address the manner in which safety information is protected from inappropriate use.

. . . .

2. GENERAL PRINCIPLES

2.1 The sole purpose of protecting safety information from inappropriate use is to ensure its continued availability so that proper and timely preventive actions can be taken and aviation safety improved.

2.2 It is not the purpose of protecting safety information to interfere with the proper administration of justice in States.

2.3 National laws and regulations protecting safety information should ensure that a balance is struck between the need for the protection of safety information in order to improve aviation safety, and the need for the proper administration of justice.

2.4 National laws and regulations protecting safety information should prevent its inappropriate use.

2.5 Providing protection to qualified safety information under specified conditions is part of a State’s safety responsibilities.

3. PRINCIPLES OF PROTECTION

3.1 Safety information should qualify for protection from inappropriate use according to specified conditions that should include, but not necessarily be limited to: the collection of information was for explicit safety purposes and the disclosure of the information would inhibit its continued availability.

3.2 The protection should be specific for each SDCPS, based upon the nature of the safety information it contains. 3.3 A formal procedure should be established to provide protection to qualified safety information, in accordance with specified conditions.

3.4 Safety information should not be used in a way different from the purposes for which it was collected.

3.5 The use of safety information in disciplinary, civil, administrative and criminal proceedings should be carried out only under suitable safeguards provided by national law.

4. PRINCIPLES OF EXCEPTION

Exceptions to the protection of safety information should only be granted by national laws and regulations when:

a) there is evidence that the occurrence was caused by an act considered, in accordance with the law, to be conduct with intent to cause damage, or conduct with knowledge that damage would probably result, equivalent to reckless conduct, gross negligence or wilful misconduct;

b ) an appropriate authority considers that circumstances reasonably indicate that the occurrence may have been caused by conduct with intent to cause damage, or conduct with knowledge that damage would probably result, equivalent to reckless conduct, gross negligence or wilful misconduct; or

c) a review by an appropriate authority determines that the release of the safety information is necessary for the proper administration of justice, and that its release outweighs the adverse domestic and international impact such release may have on the future availability of safety information.

5. PUBLIC DISCLOSURE

5.1 Subject to the principles of protection and exception outlined above, any person seeking disclosure of safety information should justify its release.

5.2 Formal criteria for disclosure of safety information should be established and should include, but not necessarily be limited to, the following:

a) disclosure of the safety information is necessary to correct conditions that compromise safety and/or to change policies and regulations;

b ) disclosure of the safety information does not inhibit its future availability in order to improve safety;

c) disclosure of relevant personal information included in the safety information complies with applicable privacy laws; and

d) disclosure of the safety information is made in a deidentified, summarized or aggregate form.

For those interested in the notions of "negligence" and the "criminalization of aviation accidents" discussion in general, there is a very good discussion on another aviation forum on this same case, here.

Peter Ladkin, (University of Bielefeld) once observed that the criminalization of aviation accidents was an extension of English Common Law, (I see Napoleonic Law is mentioned in the article you've cited, but I haven't read the article yet) and as such, he observes, the notion of "negligence" has a specific meaning and not just the meaning we might be thinking about in ordinary conversations about blame, culpability and human error.

I made the observation in this discussion that prosecutions may be a way to discover whether 'negligence' was involved. This has meanings and complexities which extend upstream, well beyond the cockpit are not unexpected outcomes of some decisions and actions. Sometimes it takes a criminal prosecution to discover this.

The point is strongly made and it is even emphasized in Annex 13 in Note 1 that disclosure of voluntary safety information may threaten and even end such voluntary disclosure.

Beyond Annex 13's mandatory reporting, safety reporting systems such as ASRs and safety data programs such as LOSA and FOQA/FDM are voluntary. Flight data programs are not legally required in Canada nor are they described as being a necessary part of any SMS Program.

The use of air safety investigation data such as CVRs and SSFDR/QAR flight data records for criminal investigations is contrary to the intent and spirit of such valuable safety tools.

The argument is not whether there may (or may not) be proof of negligence in a criminal investigation and therefore a case for criminal prosecution of crews so much as it is the inappropriate use of air safety information voluntarily collected and used for the purposes of improving safety.

Therefore, the use and / or the release of such recorded information including Air Safety Reports based upon arguments concerning "the public interest" may have the unintended and ironic effect of actually reducing levels of safety as voluntary safety programs like FOQA/FDM cease due to the potential legal liabilities of collecting such data. The question is, Why would any organization itself and why would air crews voluntarily permit such programs to collect evidence for their own prosecution?

Don

[Bryon Mask]

J.O. and Don: The TSB decided not to appeal the decision of Justice Strathy. Why, I have no idea, therefore the door has been left wide open for the courts to decide the use of CVR in investigations. Perhaps the only saving grace in the FOQA world is de-identification however you know that de-identification is not 100 percent guaranteed for a particular flight and in the case of an accident it becomes a moot point as the investigating authorities have full access to FDR data for that flight. However what it does is protect the stored historical data from playing any part in the investigation.

I'm not sure I have an answer to your last comment above other than to say that any proactive safety program such as FOQA has the capability to identify a potential hazard/risk and if appropriate steps are taken the risk is migitated and the chances of an accident occuring are reduced. We both have seen examples of this in our own FDA work.

Don, as always I am amazed at your depth of knowledge, understanding of and passion for aviation matters.