HONOLULU – In the wake of recent judicial decisions forcing disclosure of voluntarily supplied aviation safety information, and the use of aviation accident investigation reports in civil litigation and criminal prosecutions, the Flight Safety Foundation (FSF) anounced its support for statutory protection against the release or use of information gathered by voluntary self-disclosure reporting programs.
"We can and must do everything possible to ensure the continued flow of critical safety information that is increasingly coming under assault in courts around the world," said FSF President and CEO William R. Voss.
In remarks here before the FSF International Air Safety Seminar, FSF General Counsel Kenneth P. Quinn yesterday noted the increasing tendancy to criminalize aviation accidents and said, "Since prosecutors and courts are not protecting the confidentiality of voluntarily supplied safety information, legislatures need to step in to prevent critical sources of safety data from drying up."
FSF endorses the creation of a "qualified exception" from discovery of voluntary self-disclosure reporting programs, similar to the protection already provided in U.S. law against use of cockpit voice recorder (CVR) and surface vehicle recordings and transcripts. Examples of such voluntary self-disclosure reporting programs include the Aviation Safety Action Program (ASAP), the Flight Operational Quality Assurance program (FOQA), and the Aviation Safety Information Analysis and Sharing (ASIAS) system.
Airlines and regulators increasingly are using these and other tools to obtain predictive information that allows preemptive interventions to be developed to mitigate threats revealed by the data instead of relying on forensic evidence after a crash. "We cannot tolerate waiting for a crash to show us there is a safety problem that needs to be fixed," said Voss.
By most estimates, nearly 98% of safety information currently obtained from voluntary disclosure programs would not be available if program participants are exposed to prosecution and reprisal.
FSF recommends the adoption of stronger protections to shield such information from disclosure in any judicial proceeding, except to allow limited discovery when a court decides that the requesting party has demonstrated a particular need for the information, and that the party would not receive a fair trial if the information is not provided. If discovery is permitted, FSF urged that it only be made available under protective order, and not generally be made available to the public.
The FSF announcement comes on the heels of reports that American Airlines and its pilot union are considering abandoning their 14-year old ASAP program, and a judicial decision concerning the 2006 Comair crash in Lexington, KY, that ordered the release of ASAP reports, saying that Congress had the power to protect the ASAP information, as it had with CVR recordings and transcripts, but had not done so. Further, several recent criminal prosecutions in Europe have sought to establish criminal culpability through the use of information voluntarily provided to accident investigators.
For more information visit www.flightsafety.org.
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