Keep in mind that the Flight Data Recorder (FDR) and Cockpit Voice Recorder (CVR) data are not routinely retrieved until after an accident. And, cockpit voice recorder data can’t be used in any FAA enforcement action (FAR 121.359). The recording is also protected by federal law from being revealed in any civil litigation without a court order. The FDR information is supposed to be used only to corroborate other evidence in any legal proceeding. It is not to be used by itself for certificate enforcement action.
The problem and the attempted solution
Air carriers figured that if all this data was routinely collected by the FAA, how would it be protected from use by adversaries or FAA enforcement lawyers? The FAA would get no help from industry unless there were substantial and clear assurances in a law to protect the information supplied.
Although the Administrator has publicly announced that they would not use FOQA data for enforcement actions, FAA attorneys have raised some legal questions about their duty to bring actions for the public safety. There could be an in-house dispute over the use of the information and you know who would lose.
A little history tells part of the story. When the American Airlines accident enroute to Cali, Colombia in 1995 found its way into court, the plaintiff’s attorneys sought copies of flight operations safety data from American Airlines. American refused to provide any of their safety critical data for obvious reasons. The Judge, however, granted the plaintiff’s request for American to turn over sensitive safety critical data. Although the American data would not come under the protection of FAR 193, since it was not at that time submitted to the FAA, this action would apply to the FAA under 193 if a court so ordered. That Court refused to provide American with any protection for their safety-sensitive data. So far, courts have generally refused to provide any protection for this kind of data. Perhaps FAR 193 will give courts some pause in ordering the turnover of data, but I would not bet on it. Air carriers should therefore still be concerned about providing FAA any data that might be damaging, especially if they can’t review it in advance.
FAA drafted FAR 193 in an attempt to avoid the problem. However, to some, it seems to complicate the very simple mandate of the law. One should note that when faced with a request for data from a court, FAA can fight the request, but would have to comply with any order to turn over the data in accordance with FAR 193! You can be sure that they will win some and lose some.
The law - 49 USC 40123 (1996) – Very clear
The FAA Reauthorization Act of 1996 started the ball rolling on protection of information by enacting 49 USC 40123 to attempt to address the problem.
"—neither the Administrator —nor any agency receiving information from the Administrator, shall disclose voluntarily provided safety or security related information, if— (1) —disclosure would inhibit the voluntary provision of that kind of information and that—.information aids in fulfilling the Administrator’s safety and security responsibilities..."
Following Congress passing this relatively simple law, FAA published the not so clear FAR 193, effective July 25, 2001.
Per the regulation, the person or company seeking protection from disclosure must file an application requesting that the information be protected. The FAA reviews the application and it is then published in the Federal Register requesting comments. After reviewing comments, the FAA must find that the following elements are met. In order to be protected, the information:
1. Must be provided voluntarily
2. Must be safety or security related
3. Disclosure would inhibit the voluntary nature of the information
4. The information aids FAA’s safety and security duties
5. Withholding of the information aids FAA safety and security responsibilities
Keep in mind that only information collected under this voluntary disclosure program is protected. Information obtained by FAA through other means is not protected under FAR 193 and could be disclosed.