54TH ANNUAL CONFERENCE, Sofia, Bulgaria, 20-24 April 2015
WP No. 153
Protection of Safety Information Sources
Presented by PLC
Aviation system safety relies on the constant flow of safety data provided on a voluntary or mandatory basis by front line personnel in the belief that such data will only be used for safety purposes and by no means used for disciplinary, civil, administrative or criminal proceedings against operational personnel. The understanding is that mistakes will be made, and that the line between an “honest mistake” and intentional or reckless behavior can only be drawn by a member of the judiciary. Nevertheless, the concern of aviation professionals and front-line operators about the so–called “criminalisation” of aviation accidents and incidents illustrates the delicate relationship between the propagation of aviation safety and the administration of justice, which constitutes one of the pillars of state sovereign function.
1.1 Within the context of aviation, safety is defined as:
“The state in which risks associated with aviation activities, related to, or in direct support of the operation of aircraft, are reduced and controlled to an acceptable level” (ICAO, Annex 19, Chapter 1, Definitions)
1 1.2 In the aviation domain there is a delicate relationship between the propagation of aviation safety and the administration of justice. Safety investigation aims to enhance aviation safety through independent investigation and reporting while judiciary investigation aims to preserve justice by investigating and prosecuting possible perpetrators.
1.3 Accident investigation reports have been used in subsequent litigation against aviation professionals in an inconsistent manner. Since different jurisdictions have differing legal systems, the courts have different approaches in the adoption of the whole or part of an accident report in criminal litigation against aviation professionals who may face criminal charges in one country but not in another (international harmonisation of criminal law remains a delicate issue). Aviation professionals may find themselves with the dilemma of having to choose between enhancing aviation safety by supplying information that may incriminate themselves or avoiding so for the purposes of self-preservation.
2.1 Safety Information Systems
2.1.1 The aviation system is a complex one that requires an assessment of the human contribution to safety and an understanding of how human performance may be affected by its multiple and interrelated components. An understanding of cultural components as well as the interaction between them is important to safety management.
2.1.2 Any effective safety information system depends crucially on the willing participation of the workforce in direct contact with occurrences. Frequently information is obtained through error and incident reporting which considers reports made by aviation professionals that may be self-incriminating. Use of safety information for uses other than safety-related purposes may inhibit the future availability of such information.
2.1.3 In order to improve aviation safety levels, a cultural change is needed through the implementation of Safety Management Systems (SMS) by service providers and State Safety Programmes (SSP) by regulatory bodies. Provisions for the protection of Safety Data Collection and Processing Systems (SDCPS) are necessary to motivate people to provide essential information on safety-related hazards. Both SMS and SSP are based on an effective flow of information regarding occurrences for continuous safety assessment and deficiency correction.
Under a Safety-I model, the starting point for safety management is either that something has gone wrong or has been identified as a risk. In either case, the general solution is known as “find and fix”: look for failures and malfunctions, try to find and eliminate their causes, or to improve barriers. Safety management should move from ensuring that “as few things as possible go wrong” to ensuring that “as many things as possible go right”. The basis for safety management must therefore be an understanding of why things go right (Safety-II model) leading to a proactive SMS (EUROCONTROL, From Safety‐I to Safety‐II: A White Paper, September 2013).
2.1.4 Safety occurrences reporting systems protect the identity of the reporter and contain non-punitive provisions although it doesn´t mean that persons responsible for safety occurrences could escape liability for unlawful actions, gross negligence or violations.
2.1.5 In order to improve aviation safety, relevant civil aviation information should be reported, collected, stored, protected, exchanged, disseminated and analysed.
2.1.6 An effective safety occurrence reporting system is a vital tool for aviation safety. Regardless of how sophisticated safety systems are, if occurrences are not reported, the rest of the system becomes ineffective. Persuading people to file reports on aviation safety occurrences, especially when it may entail divulging their own errors, has four main constraints:
- Personal: Human reactions to making mistakes do not usually lead to frank confessions. There might be a natural desire to forget that the occurrence ever happened and to avoid the extra work required to report. Also, unconstructive beliefs (Cox and Cox, 1991) such as “accidents cannot be prevented” (personal skepticism) “accident won´t happen to me” (personal immunity) “incidents are just part of the job” may draw the line between reporting or not.
- Trust: People do not completely trust the system to keep their details confidential and they may fear reprisals depending on the legal environment.
- Motivation: Potential reporters may not always see the added value of making reports, especially if they are sceptical about the likelihood of the management acting upon the information.
- Legal framework: The right in most judicial systems to abstain from selfincrimination.
2.2 Effective reporting systems
Achieving an effective reporting system requires an organisational climate in which people are prepared to report their errors and incidents. The information obtained from accurate data is the basis for improving any system and the data collection system must not represent a threat to the person providing the data. Aviation professionals must be able to share information regarding errors or mishaps in an environment based on trust in which neither entails blame nor leads to ungrounded prosecution. In order to promote the flow of such information its use must be ensured. Protection of all sources of information used in the SMS and SSP is therefore required. Such information can be:
- Reactive information
Referring to events that have already occurred, such as serious incidents and accidents which could have been the cause of damage, generally under the scope of Annex 13.
- Proactive information
Referring to the information obtained from analysing the activities of organisations such as surveys, audits and inspections and also the one provided by way of voluntary occurrence reports from operational personnel, generally under the scope of Annex 13, Chapter 8: “Recommendation: A State should establish a voluntary incident reporting system to facilitate the collection of information that may not be captured by a mandatory incident reporting system”
- Predictive information
Referring to real time system performances in daily operations to identify potential future problems, for example data collected from Flight Data Analysis (FDA) or Operational Flight Data Monitoring (OFDM), as described in Annex 6, Chapter 3.
2.3 Accident/Incident Investigation and Criminalisation
2.3.1 Following an aviation accident or serious incident, many complex legal issues may arise for aviation professionals if they are held accountable for any of their actions and/or omissions that may have contributed towards the situation. Following the discussion on criminalisation of aviation incidents and accidents, concerns on the protection of safety reports and reporters and also on the intrusion by the judiciary have been raised. In many countries, data gathered by independent safety investigations has been appropriated by judicial action, and formal accidents reports are being used either as evidence in court or as preparatory reading for prosecutors and judges. Since it is not the purpose of safety investigation reports to apportion legal blame and responsibility, these documents are often written from an operational and technical perspective without any further consideration of the judicial system.
2.3.2 In cases where an aviation accident or serious incident involves loss of life, aviation professionals may face criminal charges in accordance with domestic law since criminal jurisdiction usually remains firmly embedded at a State level. This punitive approach aims to satisfy the many different interested groups after an accident by allowing the injured party to obtain compensation by imposing civil liability, as well as satisfying society´s needs (our basic instinct to attribute blame).
2.3.3 To qualify as a potential criminal offence, a Court will consider factual criteria as well as behavioural context, especially in respect of negligence. Demonstration of negligence is an existing requirement in one form or another regardless of the judicial system. Negligence is typically defined as “the failure to exercise the standard of care that a reasonable prudent man would have exercised in a similar situation” (The Law Dictionary, Legal Dictionary online, 2nd ed.) Nevertheless, a situation which may appear risky to the layman, will in fact often remain within the margins of safe operations to aviation practitioners. The tension between the judicial system and the aviation community arises from the fact that prosecution, even conviction, has occurred following events which in the view of aviation professionals did not justify the action. Judges and prosecutors will in most cases lack the knowledge and practical experience required to appreciate an aviation safety occurrence from the perspective of a reasonable aviation professional. Aviation personnel and the judiciary have different perspectives, training, and guidelines and pursue different objectives.
2.3.4 At this point, the Just Culture initiative developed by Eurocontrol and IFATCA, enters the equation:
“a culture where front line operators are not punished for actions, omissions or decisions taken by them that are commensurate with their experience and training, but where gross negligence, wilful violations and destructive acts are not tolerated” (Just Culture Guidance Material for Interfacing with the Judicial System, EUROCONTROL, 2008).
The misuse of criminal processes or ignorance from the part of the Judiciary is equally unacceptable.
“Just Culture represents the fundamental recognition that both the drive for improved aviation safety and the administration of justice will benefit from a carefully established equilibrium, moving away from criminalisation fears” (Open Reporting in Civil Aviation, Roderick D. Van Dam, 2014).
It is not about providing judicial immunity for aviation professionals but to ensure that a tiny minority of cases considered not tolerable by aviation professionals themselves, are prosecuted. No matter how well trained, humans operating in highly complex and dynamic environments are bound to make mistakes, regardless of how well skilled and motivated they are.
2.3.5 Technical and Legal Investigation
Technical Investigations are widely conducted in accordance with ICAO Annex 13 which clearly states that the sole purpose of the investigation is to prevent future accidents and not to apportion blame or liability. This approach is also entrenched by Regulation (EU) No 996/2010 on the investigation and prevention of civil accidents and incidents within the European Union. In this non-punitive technical investigation, the accident sequence of events are derived from the facts collected. The objective is to establish the course of events leading up to the accident, that is the “what, where and when”, before considering the root causes, “why” and to identify any measures that might be taken in order to prevent similar incidents occurring in future. Conclusions are reached on the probable causes of an accident for the purpose of enhancing aviation safety.
Legal investigations are carried out in order to determine who was at fault or responsible for the accident/serious incident. This is a punitive approach aiming to identify the legally accountable parties.
2.4 International Legislative and Regulatory Framework
2.4.1 At an international level, ICAO Annex 13 is the fundamental document referring to Aircraft Accident and Incident Investigation and for many years it has been the basic protection mechanism for reporters:
- Standard 3.1 states that “the sole objective of the investigation of an accident or incident shall be the prevention of accidents and incidents. It is not the purpose of this activity to apportion blame or liability”
- Standard 7.3 states that “States should establish formal incident reporting systems to facilitate collection of information on actual or potential safety deficiencies”
- Attachment E was adopted in March 2006 with the aim of assisting States to adapt existing national laws and regulations to protect the information sources of safety data against inappropriate use. This is on the understanding that it’s purpose is not to interfere with the proper administration of justice, which must be balanced with the need for the protection of said information in order to improve aviation safety
- Attachment E in item 2.1 considers also that 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
- Standard 5.12 considers that certain information that is essential for the investigation of an incident or accident, although it cannot be disclosed for purposes other than those of the investigation, be provided to the authorities responsible for the administration of justice if they consider that the disclosure of said information is more important than the negative consequences that its disclosure could have for the investigation itself or for future investigations. It must be said that 5.12 only addresses accident and serious incident records, such as CVR´s transcripts, but it does not address other sources of safety information such as Flight Operations Quality Assurance (FOQA) programs, Line Operational Safety Audit (LOSA), confidential reports under the Aviation Safety Action Program (ASAP) or any other voluntarily submitted safety information.
2.4.2 The use of safety information other than for safety-related purposes may inhibit the future availability of such information. This fact was recognized by the 35th Session of the ICAO Assembly, 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.
2.4.3 ICAO Annex 19, Safety Management, effective November 2013 is included herein as Attachment B. This was previously contained within Annex 13 and details the legal guidance for the protection of Safety Information from Safety Data Collection and processing systems, complementing the set of regulations and activities integrated in the State Safety Program (SSP). Throughout this document:
- Safety information refers to information contained in safety data collection and processing systems (SDCPS) which are established for the sole purpose of improving aviation safety, and qualify for protection under specified conditions that should include, but not be limited to, whether the collection of information was for explicit safety purposes and if the disclosure of such information would inhibit its continued availability.
- The use of safety information in disciplinary, civil, administrative and criminal proceedings should only be carried out under National Law, with suitable safeguards. Exceptions to the protection should only be granted in case of evidence that occurrence was caused with intent to cause damage or knowledge that damage would probably result and appropriate authority determines that the release of safety information is necessary for the proper administration of justice.
2.4.4 At a European level, EUROCONTROL safety regulations, ESSAR 2, have required States to implement occurrences reporting and assessments for ATM safety. EU Directive 94/56/EC covered the investigation of accidents and incidents (providing almost no protection for reporters) and EU Directive 2003/42/EC protected and encouraged people to report safety incidents. Both of these regulations have now been repealed and several EU Regulations (No.1321/2007, No.1330/2007, No. 216/2008, No.996/2010) have been implemented since then with the sole objective of ensuring a high level of safety in civil aviation within the Union. In either way, the protection of the sources of information applies to all of them, but without prejudice to national rules relating to access to information by judicial authorities:
- Reg.216/2008, Article 16. 2. Without prejudice to applicable rules of criminal law, Member States shall refrain from instituting proceedings in respect of unpremeditated or unintentional infringements of the law which come to their attention only because they have been reported pursuant to this Regulation and its implementing rules.
- Reg.216/2008. Article 16.3. (…) Member States shall ensure that employees who provide information in application of this Regulation and its implementing rules are not subject to any prejudice on the part of their employer.
2.4.5 Lessons learned from the implementation of such a regulatory framework lead to the establishment of mandatory safety occurrence reporting systems, implementing mechanisms to collect, evaluate, process and store reported occurrences, ensuring safety information collection by guaranteeing its confidentiality when storing. The establishment of a European Network of Civil Aviation Safety Investigation Authorities also aims to improve assistance to the victims of air accidents and their relatives.
2.4.6 However, several shortcomings were identified. In particular, the lack of protection for the reporters, the lack of harmonization in the occurrence data collection, and the lack of requirements regarding safety analysis and recommendations. To deal with these matters, a new Occurrence Reporting Regulation (No. 376/2014) has been adopted by the EU. This shifts the focus from a reactive system to a proactive, risk and evidence-based system setting a comprehensive framework and standards for reporting, collecting, storing, protecting and disseminating the relevant safety information and introducing requirements for the adoption of followup safety actions at a national level.
2.4.7 The provisions of Regulation (EU) 376/2014 on the reporting, analysis and followup of occurrences in civil aviation will apply from 15 November 2015. In the meantime, preparations will be made to adopt implementing rules and guidance material. This Regulation may finally be an opportunity to come to an agreement satisfying both the need of the aviation community for a flow of safety information and the quest of society for accountability. Certain aspects of this regulation are worth of particular note:
- Standard 8. Voluntary reporting systems should complement the mandatory reporting systems and both should allow front-line aviation professionals to report details of aviation safety-related occurrences. Mandatory and voluntary reporting systems should be set up within organisations, the Agency and competent authorities of Member States.
- Standard 16. Occurrence reports are to be stored in databases compatible with the European Coordination Centre for Aircraft Incident Reporting Systems (ECCAIRS) and with the ADREP taxonomy.
- Standard 35. Any reporter or a person mentioned in occurrence reports should be adequately protected. In this context, reports should be anonymised and details relating to the identity of the reporter and of any person mentioned in the report, should not be entered in the database.
- Standard 38. A situation where a person mentioned in a report has themself the obligation to report the same occurrence, and intentionally fails to report it, may face penalties in application of the Regulation.
- Standard 43. Unpremeditated or inadvertent infringements of the law that come to attention of the authorities solely through reporting pursuant to this Regulation should not be subject to disciplinary, administrative or legal proceedings, unless otherwise provided by applicable national criminal law.
- Standard 51. Penalties could be also imposed to any person or entity which misuses information protected by the Regulation.
2.4.8 The Commission, with the support and involvement of the European Aviation Safety Agency, EASA, has started to prepare guidelines for supporting the implementation of the Regulation No 376/2014, mainly trying to cover three aspects:
- Provide a common understanding of the legislation´s provisions to facilitate their correct and harmonised application;
- Explain how the provisions of the legislation will interact with existing occurrence reporting related requirements in certain areas;
- Where relevant, propose possible means of compliance and present good practices.
2.5 The use of Data from the CVR/FDR and potential misuse of Area Voice Recorders
2.5.1 The primary purpose of the accident investigation process is to identify safety deficiencies. These are largely dependent upon firstly obtaining accurate information from all parties. Secondly, it requires the accurate analysis of recorded data such as CVR (recording communication between the flight crew), between the flight crew and ATC, the automated radio weather briefings, any conversation between pilots and ground or cabin staff or any sound inside the cockpit contained within the FDR and electronically transmitted air safety reports. Information provided by these records is often impossible to obtain by other means. This information can be abused through the inappropriate release of the recorded information and the release of transcripts.
2.5.2 This issue is specifically dealt with in Annex 13 (ICAO 2001) where Paragraph 5.12 states that cockpit voice recordings and transcripts from such recordings shall not be made available for purposes other than accident or incident investigation,
“unless the appropriate authority for the administration of justice in that States determines that their disclosure outweighs the adverse domestic and international impact such action may have on that or any future investigation”.
It drawing attention to the fact that the information contained in the records could be inappropriately utilised for subsequent disciplinary, civil, administrative and criminal proceedings.
2.5.3 Area recordings need to be considered in the same context as CVRs and their disclosure strictly defined. Section 7 of Attachment E, Annex 13, contains comprehensive guidance on the protection of these recordings.
2.5.4 ICAO Annex 19, Attachment B, considers that since ambient workplace recordings required by legislation may be perceived by operational personnel as an invasion of privacy, they should be considered as privileged protected information and therefore national laws and regulations should provide specific measures of protection to such recordings
2.5.5 IFATCA believes there should be a policy clearly stating that recordings such as ATC area recordings or any video recording of ATC operational areas shall not be disclosed to the public (ICAO, High Level Safety Conference 2010, Montreal, April 2010).
Improving aviation safety depends widely on the feedback of knowledge generated by a system of accident/incident data collection and analysis.
Incident reporting by front-line operators is vital for maintaining adequate safety levels, but reporting levels may suffer when reporters fear punishment for their “honest mistakes”.
Both the SMS and SSP create the need to promote open reporting systems and protect the gathered data for the sole purpose of improving aviation safety based upon a Just Culture approach.
It is not the purpose of protecting safety information to interfere with the proper administration of justice. Nobody should be above the law and immune from appropriate criminal prosecution.
The tension between the judicial system and the aviation community arises from the fact that prosecution and conviction has occurred following events which, in the view of aviation professionals, did not justify the action.
Just Culture represents the fundamental recognition that both the aviation safety domain and the administration of justice will benefit from a carefully established equilibrium, without fear of criminalisation.
IFATCA supports the idea of strengthening the protection of safety-related data information that is collected through voluntary and mandatory reporting systems as well as through investigation processes in order to support air transportation safety oversight activities. This should be achieved through the overarching application of Just Culture principles to ensure the continued availability of safety-related data.
4.1 It is recommended that:
“Protection of the identity(ies) of ATM staff involved in incidents or accidents shall be guaranteed” (Melbourne 05.C.9)
(IFATCA TPM, 2014, LM 11.2.4 Protection of Identity)
Be changed to read:
“Protection of the identity(ies) of ATM staff involved in incidents or accidents is essential to ensure the continued availability of safety information and shall be guaranteed under suitable safeguards, if not provided by national laws”
4.2 It is recommended that:
“Member Associations shall promote the creation of mandatory incident reporting systems based on confidential reporting in a Just Culture among their air service provider(s), Civil Administration(s), National Supervisory Authority(ies) and members”
(IFATCA TPM, 2014, LM 11.2.1 Just Culture, Trust and Respect)
Be changed to read:
“Member Associations shall promote the creation of mandatory as well as voluntary reporting systems based upon confidential reporting in a Just Culture environment.”
4.3 The following policy is proposed for implementation:
“IFATCA fully supports protecting all sources of safety information, including ambient workplace recordings, to ensure collected data is anonymised and used only for safety analysis, rather than for punitive action against the individuals or organisations providing this information.”
4.4 It is recommended that the attached document IFATCA/ECA EU Accident Investigation Regulation 996/2010 Template Advance Arrangements is accepted as guidance material.
EUROCONTROL, Performance Review Commission, Legal and Cultural Issues in relation to ATM Safety Occurrence Reporting in Europe, September, 2006.
FAA, AUDIT REPORT, FAA´s Safety Data Analysis and sharing system shows progress, December, 2013.
FLIGHT SAFETY FOUNDATION et al, Joint Resolution Regarding Criminalization of aviation Accidents, October, 2006.
ICAO, Annex 13, Aircraft Accident and Incident Investigation, 10th Edition, July, 2010.
ICAO, Annex 19, Safety Management, First Edition, July, 2013.
ICAO, Doc. 9756, Manual of Aircraft Accident and Incident Investigaton, Part IV, Reporting, 1st Edition, 2003.
IFATCA, Technical and Professional Manual, 2014.
REGIONAL AVIATION SAFETY GROUP-PAN-AMERICAN, Proposal for Amendment to aeronautical Legislation to Protect Safety Sources, October, 2012.
REGULATION (EC) No 216/2008 of the European Parliament and of the Council of 20 February 2008 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency and repealing Council Directive 91/670/EEC, Regulation (EC) No 1592/2002 and Directive 2004/36/EC.
REGULATION (EU) No 996/2010 of the European Parliament and of the Council of 20 October 2010 on the investigation and prevention of accidents and incidents in civil aviation and repealing Directive 94/56/EC.
REGULATION (EU) No 376/2014 of the European Parliament and of the Council of 3 April 2014 on the reporting, analysis and follow up of occurrences in civil aviation, amending Regulation (EU) No 996/2010 of the European Parliament and of the Council and Commission regulations (EC) No 1321/2007 and (EC) No 1330/2007.
Appendix A – EU Accident Investigation Regulation 996/2010 Template Advance Arrangements
Following Article 12.3 of Regulation No 996/2010 of the European Parliament and of the Council of 20 October 2010, “Member States shall ensure that safety investigation authorities, on the one hand, and other authorities likely to be involved in the activities related to the safety investigation, such as the judicial, civil aviation, search and rescue authorities, on the other hand, cooperate with each other through advance arrangements.”
The European Cockpit Association together with IFATCA has prepared a template Advance Arrangements based on the existing arrangements in Europe and the recommendations of ICAO.
When an air accident occurs, different processes are triggered at the same time. Each of them responds to a specific need and may have different modus operandi and different responsibility chains. These processes have legitimate objectives and take place in a by definition emergency situation where the individual players are under significant pressure. The objective of such advance arrangements should be therefore to define, before an air accident happens, the needs and roles of each of these processes to facilitate successful, coordinated and non-contentious operations of these different processes.
The proposed template Advance Arrangements are based on the following principles:
- Clear definition of roles, duties and responsibilities;
- Determination of points of contact;
- Mutual information on the needs and objectives of the processes;
- All actors should realise the importance and legitimacy of the other processes and avoid damageable interference among the processes to preserve the overall general public interest.
This template shall be completed and adapted according to the national legislation and administrative framework and shall be made public in each Member State. The conclusion of the Advance Arrangements cannot, as stated in Article 12.3, put into question the independence of the safety investigation authority and should allow the safety investigation to be conducted diligently and efficiently.
1. Access to the site of investigation
Notwithstanding article 11 of EU Regulation 996/2010 and article 3.4 of ICAO Annex 13, the access to the site of investigation will be granted under the following priorities:
- Rescue potential survivors;
- Prevent destruction by fire or other causes;
- Protect the site from being altered;
- Preserve all evidences.
With the aim of ensuring close collaboration with authorities responsible for judicial investigation and ensuring that safety investigation authorities are allowed to carry out their tasks in the best possible conditions in the interest of aviation safety, the safety investigation authorities should be granted immediate and unrestricted access to the site of the accident.
2. Preservation of and access to evidence
In addition to article 12.1 of EU regulation 996/2010, release of seized objects should only take place after consultations between the parties.
Notwithstanding article 12.1 of EU regulation 996/2010 destructive testing should not take place unless after the documented agreement of both parties.
3. Initial and ongoing debriefings of the status of each process
Setting up the coordination process
If a judicial investigation is conducted, the nominated AIB point of contact will, without delay be informed by the judiciary point of contact and liaise with it to coordinate the organisation of both investigations.
Both parties will inform each other and coordinate about their investigative activities to be performed, the planning of these investigative activities in time, the seizure of objects and the arrangement of regular coordinating consultations during both investigations. This coordination process should be documented.
Progress of the investigations
On request, both parties will inform one another of the investigative activities performed and still to be performed, in so far as this is in the interest of the mutual investigations.
The information exchanged on the progress of the investigations will be used in strict confidence and exclusively for the purpose of the investigations. This information on the progress of the investigation shall not be disclosed or revealed to third parties, without written consent of both parties.
4. Exchange of information
Each party of this arrangement shall designate a permanent and up to date point of contact.
The AIB and the judicial authorities will appoint representatives (and inform the other party thereof) who are responsible for dealing with requests for provision of information and for providing it.
Provision of information
In so far as this is permitted within the laws and on a need to know basis, information will be shared in writing by the appointed parties on the principle of openly sharing factual technical evidence notwithstanding the need to avoid potential conflicts of interest and secrecy of the summary justified by a potential implication of one of the parties. Each organisation will keep a record of the information provided.
The request of information should be as concrete as possible and state the reasons for this request.
The following exceptions to this principle should be applied:
- Statements and declarations made by people/persons involved;
- Medical data or private information of persons involved;
- Voice and image recordings;
- Safety Data Collection and Processing Systems (SDCPS) as described in attachment E of ICAO Annex 13.
If requested, statements of persons made within the scope of an investigation will be made available to the requesting party, provided that the person concerned has given his/her explicit consent thereto. If requested, medical or private information of persons which has been laid down within the scope of an investigation will be made available to the requesting party, provided that the person concerned (or surviving relative of this person) has given his/her explicit consent thereto. In any case the person concerned should be previously informed about their rights.
If requested by the judicial authorities, voice and image recordings and/or their transcripts can only be shared on a need to know basis if it concerns a criminal investigation into a case of hostage-taking, murder or a criminal offence with terrorist intention.
5. Appropriate use of safety information
Notwithstanding article 14 of the EU Regulation 996/2010, the information obtained in the process of an exchange of information will be used in strict confidence and exclusively for the purposes stated in the request in order to respect the fundamental rights of the persons involved, notably the right of privacy and due process. The information will not be disclosed or revealed to third parties, without the prior consent of both parties.
The use of SDCPS data beyond its intended aim should be carefully considered as it might impact the future availability of safety information and the efficiency of the concerned safety systems.
6. Resolution of conflicts
Disputes with respect to the cooperation and coordination between the parties within the scope of their investigations into a specific incident shall primarily be solved through consultations between the responsible representatives. If the dispute continues, as well as in case of general disputes on the interpretation and implementation of the present protocol, the next higher level representatives of each party will consult with each another. The independency of the AIB should be guaranteed throughout the process.
Last Update: May 8, 2020