ICAO Legal guidance for the protection of safety information sources1. INTRODUCTIONAs mentioned on several occasions during this seminar,the civil aviation community efforts must strike a verydelicate balance of interests between the need toprotect safety information and the responsibility toadminister justice. This is actually explicitly statedsince 1980 in paragraph 5.12 of Annex 13 for certaininvestigation records. Paragraph 5.12 establishes thatcertain types of information on an accident shall NOT bemade available for purposes other than accident orincident investigation, unless the authority in charge ofjustice determines that their disclosure is more importantthan the adverse impact such action may have oninvestigations. So, for more than 30 years, ICAO, byconsensus of the international community, explicitlybinds States to accord special protection to certainaccident and incident records in regard of their potential
2use in judicial proceedings, thereby seeking a necessarybalance of interests between safety and justice.2. HISTORICAL DEVELOPMENTSThis matter of protection of safety information is verysensitive, even more in regard of certain privacy aspectsof stakeholders concerned, particularly the community ofpilots. More generally, the continued availability ofcertain safety information has to be ensured. This led toendeavours over time to re-visit the concept of balanceof interests between justice and safety.2.1 In 1983, the 25th Session of the ICAO LegalCommittee discussed the possibility of developing aninternational instrument safeguarding complete privacyof investigations and preventing disclosure of recordslisted in paragraph 5.12. However, it was recognized thatnational legislations relating to “freedom of information”and other legal provisions relating to availability ofevidence are closely connected with fundamentalconstitutional provisions and form part of the legal“public order” of States. It was concluded that anyattempt in whatever form to legislate internationally
3restriction on the freedom of information, availability ofevidence and full exchange of information, “WOULD NOTAPPEAR LEGALLY REALISTIC”.2.2 In 1999, the Accident Investigation andPrevention (AIG) Divisional meeting invited theAssembly to re-consider the subject of use ofinvestigation records with a view to encourage States tofurther amend their legislation for better protection. In2001, the 33rd Session of the Assembly theninstructed the Council to strengthen the Annex 13provisions with a view to enhancing the protection ofinformation while keeping the necessary balance withjustice. Nevertheless, the ANC proposed the principle ofcategorical non-disclosure of some information. Thefeedback from States clearly confirmed that one cannotgo that far, for legal or constitutional reasons in terms ofproper administration of justice and the proposal had tobe withdrawn.2.3 As recommend by the 11th Air NavigationConference of 2003, the 35th Session of theAssembly in 2004 instructed the Council to develop
4appropriate legal guidance to assist States to enact lawsand regulations protecting safety information, includinginvestigation records, while allowing for the properadministration of justice, a balance which was confirmedas a sine qua non condition. This led to the approval bythe Council of Attachment E to Annex 13 in 2006.3. ATTACHMENT E TO ANNEX 13 – “Legal Guidancefor the Protection of Information from Safety DataCollection and Processing Systems” – This guidance,which is non-bidning material, covers accident andincident investigation information as well as other type ofcollected information. Following is a brief outline of theguidance material.3.1 The basic objective of the guidance is to preventthe “inappropriate” use of information collected toimprove aviation safety. In order to provide States withflexibility, a series of principles are provided which can beadapted in national laws and regulations (as opposed to amodel legislation which may be difficult to adapt in alllegal regimes).
53.2 General principles. The sole purpose of protectingsafety information is to ensure its continued availabilityso that preventive actions may improve safety. Theguidance recognizes that providing protection to certaintypes of safety information, under specific conditions, is agenuine part of a State’s safety responsibilities, whileensuring that a balance is struck between the need for itsprotection and the need for justice.3.3 Principles of protection. First, safety informationshould qualify for protection, notably that its collection isfor explicit safety purposes, and that disclosure wouldinhibit its continued availability. Protection should also bespecific for each type of source of the information.Moreover, a procedure has to provide protection, withspecific conditions. Furthermore, its use in disciplinary,civil, administrative and criminal proceedings should besubject 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
6authority considers that circumstances reasonablyindicate — that the occurrence was caused by an actlegally defined as conduct with intent to causedamage, or conduct with knowledge that damagewould probably result, behaviour that is equivalentto reckless conduct, gross negligence or wilfulmisconduct. This exception would also apply whenthe release of the information is necessary for theproper administration of justice, and outweighs theadverse impact such release may have on the futureavailability of safety information (5.12).3.5 Public disclosure. The ICAO guidance proposesthat the onus to justify the release of informationshould be on those seeking disclosure. Formalcriteria for disclosure should be established such as:need to correct conditions which compromise safety,or to change policies and regulations; the disclosureshould be made in a de-identified, summarized oraggregate form. Moreover, disclosure of relevantpersonal information included in the safetyinformation needs to comply with applicable privacylaws.
7 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.3.7 Protection of recorded information. Lastly, theguidance addresses the protection of recordedinformation, to be treated as information deservingenhanced protection, since workplace recordings requiredby legislation, such as cockpit voice recorders (CVRs),raise privacy concerns. ICAO suggests specific measuresof protection, upholding the confidentiality of suchrecordings and limiting their public access. This couldinclude, for instance, judge orders denying publicdisclosure or media publication, by way of what is called“gag orders”.4. WHAT NEXT ?
8The historic overview of what happened in ICAO since1980, when paragraph 5.12 was initially adopted,demonstrates that there is a very stable principle: thenecessary balance between the protection of safetyinformation and the imperatives of justice. This principlehas been revisited more than once during 30 years andthe basic outcome was always the same: this is anintangible concept. The word “immunity” can therefore bedefinitely erased from our vocabulary.We must then conclude that the theory is a fait accompli.However, much work remains to be done forimplementing adequately and usefully this principle; thenext step is about the practical aspects of its applicationso as to attain a real added value for both safety andjustice, not being opposed to each other but taken ascomplementary, for the ultimate general interest of thepublic.4.1 In this context, following the (AIG) DivisionalMeeting of 2008 and the ICAO High-level SafetyConference (HLSC) held during Spring of 2010, the
937th Session of the ICAO Assembly held in Fall 2010instructed the Council, through a multidisciplinary groupand taking into account the necessary interactionsbetween safety and judicial authorities, to considerENHANCING: (1) the provisions on the protection ofcertain accident and incident records (to facilitate theimplementation of relevant Annex 13 provisions) and (2)the provisions on the protection of information gatheredfrom safety data collection and processing systems(SDCPS).4.2 State letter dated 1 March 2011 was consequentlysent to selected States and organizations with a view toestablishing the ICAO Safety Information Protection TaskForce (SIP TF). The Task Force will be supported at theICAO level by both the Air Navigation Bureau and theLegal 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 tothe Secretariat, who will provide regular updates and finalrecommendations to the ANC. The Commission will decide
10upon a course of action which may include changes toexisting SARPs and guidance material.4.3 In terms of potential avenues, the following couldbe considered, among other options:- Amendment to paragraph 5.12: the disclosure of somerecords remain extremely touchy due to their privacy-related aspects. CVRs and transcripts could be separatedfrom the current paragraph 5.12 of Annex 13, to placefurther emphasis on the caution with which judicialauthorities would consider any disclosure, withsupplementary limitations to public disclosure.- Attachment E, which in 5 years of existencedemonstrated its usefulness as reference for some newlegislation, could be enhanced in light of experience. Twopoints appear conceivable: first, it could be useful todifferentiate between accident and incident investigationrecords, and other safety information collected, alike inthe recent Assembly Resolutions; their differing originsmay justify some differentiation in their respective
11treatment by the guidance. Second, some principles maybe mature enough to be upgraded, as RecommendedPractice or as Standard.- Finally, to reconcile the safety and the justice world, tomake them complementary for the final benefit of thepublic, practical tips or procedures could be provided toinvestigators and judges. As a matter of example,specialized pools of judges or the institutionalizedavailability of technical experts should lead to increasedtransparency and knowledge of facts at issue, hence towell-grounded decisions avoiding undue blame or liability. ------------