ICAO Legal guidance for the protection of safety

information sources

1. INTRODUCTION

As mentioned on several occasions during this seminar,

the civil aviation community efforts must strike a very

delicate balance of interests between the need to

protect safety information and the responsibility to

administer justice. This is actually explicitly stated

since 1980 in paragraph 5.12 of Annex 13 for certain

investigation records. Paragraph 5.12 establishes that

certain types of information on an accident shall NOT be

made available for purposes other than accident or

incident investigation, unless the authority in charge of

justice determines that their disclosure is more important

than the adverse impact such action may have on

investigations. So, for more than 30 years, ICAO, by

consensus of the international community, explicitly

binds States to accord special protection to certain

accident and incident records in regard of their potential

use in judicial proceedings, thereby seeking a necessary

balance of interests between safety and justice.

2. HISTORICAL DEVELOPMENTS

This matter of protection of safety information is very

sensitive, even more in regard of certain privacy aspects

of stakeholders concerned, particularly the community of

pilots. More generally, the continued availability of

certain safety information has to be ensured. This led to

endeavours over time to re-visit the concept of balance of

interests between justice and safety.

2.1 In 1983, the 25th Session of the ICAO Legal

Committee discussed the possibility of developing an

international instrument safeguarding complete privacy

of investigations and preventing disclosure of records

listed in paragraph 5.12. However, it was recognized that

national legislations relating to “freedom of information”

and other legal provisions relating to availability of

evidence are closely connected with fundamental

constitutional provisions and form part of the legal

“public order” of States. It was concluded that any

attempt in whatever form to legislate internationally

restriction on the freedom of information, availability of

evidence and full exchange of information, “WOULD NOT

APPEAR LEGALLY REALISTIC”.

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2.2 In 1999, the Accident Investigation and

Prevention (AIG) Divisional meeting invited the

Assembly to re-consider the subject of use of

investigation records with a view to encourage States to

further amend their legislation for better protection. In

2001, the 33rd Session of the Assembly then

instructed the Council to strengthen the Annex 13

provisions with a view to enhancing the protection of

information while keeping the necessary balance with

justice. Nevertheless, the ANC proposed the principle of

categorical non-disclosure of some information. The

feedback from States clearly confirmed that one cannot

go that far, for legal or constitutional reasons in terms of

proper administration of justice and the proposal had to

be withdrawn.

2.3 As recommend by the 11th Air Navigation

Conference of 2003, the 35th Session of the

Assembly in 2004 instructed the Council to develop

appropriate legal guidance to assist States to enact laws

and regulations protecting safety information, including

investigation records, while allowing for the proper

administration of justice, a balance which was confirmed

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as a sine qua non condition. This led to the approval by

the Council of Attachment E to Annex 13 in 2006.

3. ATTACHMENT E TO ANNEX 13 – “Legal Guidance

for the Protection of Information from Safety Data

Collection and Processing Systems” – This guidance,

which is non-bidning material, covers accident and

incident investigation information as well as other type of

collected information. Following is a brief outline of the

guidance material.

3.1 The basic objective of the guidance is to prevent

the “inappropriate” use of information collected to

improve aviation safety. In order to provide States with

flexibility, a series of principles are provided which can be

adapted in national laws and regulations (as opposed to a

model legislation which may be difficult to adapt in all

legal regimes).

3.2 General principles. The sole purpose of protecting

safety information is to ensure its continued availability

so that preventive actions may improve safety. The

guidance recognizes that providing protection to certain

types of safety information, under specific conditions, is a

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genuine part of a State’s safety responsibilities, while

ensuring that a balance is struck between the need for its

protection and the need for justice.

3.3 Principles of protection. First, safety information

should qualify for protection, notably that its collection is

for explicit safety purposes, and that disclosure would

inhibit its continued availability. Protection should also be

specific for each type of source of the information.

Moreover, a procedure has to provide protection, with

specific conditions. Furthermore, its use in disciplinary,

civil, administrative and criminal proceedings should be

subject to SAFEGUARDS provided by law.

3.4 Principles of exception. Exceptions to the

protection of safety information should only be granted

by national laws and regulations when there is clear

evidence — or whenever an appropriate authority

considers that circumstances reasonably indicate — that

the occurrence was caused by an act legally defined as

conduct with intent to cause damage, or conduct with

knowledge that damage would probably result, behaviour

that is equivalent to reckless conduct, gross negligence

or wilful misconduct. This exception would also apply

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when the release of the information is necessary for the

proper administration of justice, and outweighs the

adverse impact such release may have on the future

availability of safety information (5.12).

3.5 Public disclosure. The ICAO guidance proposes that

the onus to justify the release of information should be on

those seeking disclosure. Formal criteria for disclosure

should be established such as: need to correct conditions

which compromise safety, or to change policies and

regulations; the disclosure should be made in a de-

identified, summarized or aggregate form. Moreover,

disclosure of relevant personal information included in

the safety information needs to comply with applicable

privacy laws.

3.6 Responsibility of the custodian of safety

information. Attachment E to Annex 13 also proposes

that each type of safety information should have a

designated custodian responsible for its protection

according to safeguards, unless its release is justified

under the principles of exception, or disclosure has been

granted by the originator.

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3.7 Protection of recorded information. Lastly, the

guidance addresses the protection of recorded

information, to be treated as information deserving

enhanced protection, since workplace recordings required

by legislation, such as cockpit voice recorders (CVRs),

raise privacy concerns. ICAO suggests specific measures

of protection, upholding the confidentiality of such

recordings and limiting their public access. This could

include, for instance, judge orders denying public

disclosure or media publication, by way of what is called

“gag orders”.

4. WHAT NEXT ?

The historic overview of what happened in ICAO since

1980, when paragraph 5.12 was initially adopted,

demonstrates that there is a very stable principle: the

necessary balance between the protection of safety

information and the imperatives of justice. This principle

has been revisited more than once during 30 years and

the basic outcome was always the same: this is an

intangible concept. The word “immunity” can therefore

be definitely erased from our vocabulary.

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We must then conclude that the theory is a fait accompli.

However, much work remains to be done for

implementing adequately and usefully this principle; the

next step is about the practical aspects of its application

so as to attain a real added value for both safety and

justice, not being opposed to each other but taken as

complementary, for the ultimate general interest of the

public.

4.1 In this context, following the (AIG) Divisional

Meeting of 2008 and the ICAO High-level Safety

Conference (HLSC) held during Spring of 2010, the

37th Session of the ICAO Assembly held in Fall 2010

instructed the Council, through a multidisciplinary group

and taking into account the necessary interactions

between safety and judicial authorities, to consider

ENHANCING: (1) the provisions on the protection of certain

accident and incident records (to facilitate the

implementation of relevant Annex 13 provisions) and (2)

the provisions on the protection of information gathered

from safety data collection and processing systems

(SDCPS).

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4.2 State letter dated 1 March 2011 was consequently

sent to selected States and organizations with a view to

establishing the ICAO Safety Information Protection Task

Force (SIP TF). The Task Force will be supported at the

ICAO level by both the Air Navigation Bureau and the

Legal Affairs and External Relations Bureau, i.e. the

“safety” and “justice” departments of ICAO. The SIP TF,

due to have its first meeting before summer, will report to

the Secretariat, who will provide regular updates and final

recommendations to the ANC. The Commission will decide

upon a course of action which may include changes to

existing SARPs and guidance material.

4.3 In terms of potential avenues, the following could

be considered, among other options:

- Amendment to paragraph 5.12: the disclosure of some

records remain extremely touchy due to their privacy-

related aspects. CVRs and transcripts could be separated

from the current paragraph 5.12 of Annex 13, to place

further emphasis on the caution with which judicial

authorities would consider any disclosure, with

supplementary limitations to public disclosure.

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- Attachment E, which in 5 years of existence

demonstrated its usefulness as reference for some new

legislation, could be enhanced in light of experience. Two

points appear conceivable: first, it could be useful to

differentiate between accident and incident investigation

records, and other safety information collected, alike in

the recent Assembly Resolutions; their differing origins

may justify some differentiation in their respective

treatment by the guidance. Second, some principles may

be mature enough to be upgraded, as Recommended

Practice or as Standard.

- Finally, to reconcile the safety and the justice world, to

make them complementary for the final benefit of the

public, practical tips or procedures could be provided to

investigators and judges. As a matter of example,

specialized pools of judges or the institutionalized

availability of technical experts should lead to increased

transparency and knowledge of facts at issue, hence to

well-grounded decisions avoiding undue blame or liability.

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