Safety information - information contained in safety data collection and processing systems (SDCPS) established for the sole purpose of improving aviation safety, and qualified for protection under specified conditions. (ICAO Annex 13)
Inappropriate use - use of safety information for purposes different from the purposes for which it was collected, namely, use of the information for disciplinary, civil, administrative and criminal proceedings against operational personnel, and/or disclosure of the information to the public. (ICAO Annex 13)
The protection of safety information from inappropriate use is essential to ensure its continued availability in future, since the use of safety information for other than safety-related purposes may reduce the availability of such information, with an undesirable effect on safety.
During the 35th Assembly of International Civil Aviation Organisation (ICAO), it was noted that existing national laws and regulations in many States may not address adequately the protection of safety information from inappropriate use.
Following the Assembly, ICAO has produced a legal guidance for the protection of information from SDCPS and it is included in Attachment E to Annex 13. This guidance is aimed at assisting States to enact national laws and regulations to protect information gathered from SDCPS, while allowing for the proper administration of justice. The objective is to prevent the inappropriate use of information collected solely for the purpose of improving aviation safety.
Principles for Protection of Safety Information
The guidance in Attachment E to ICAO Annex 13 takes the form of a series of principles that could be adapted or modified to meet the particular needs of the State enacting laws and regulations to protect safety information.
Note: The principles given below are an extract from Attachment E to Annex 13.
- 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.
- It is not the purpose of protecting safety information to interfere with the proper administration of justice in States.
- National laws and regulations protecting safety information should ensure that a balance is struck between the need for the protection of safety information in order to improve aviation safety, and the need for the proper administration of justice.
- National laws and regulations protecting safety information should prevent its inappropriate use.
- Providing protection to qualified safety information under specified conditions is part of a State’s safety responsibilities.
Principles of Protection
- Safety information should qualify for protection from inappropriate use according to specified conditions that should include, but not necessarily be limited to: that the collection of information was for explicit safety purposes and the disclosure of the information would inhibit its continued availability.
- The protection should be specific for each SDCPS, based upon the nature of the safety information it contains.
- A formal procedure should be established to provide protection to qualified safety information, in accordance with specified conditions.
- Safety information should not be used in a way different from the purposes for which it was collected.
- The use of safety information in disciplinary, civil, administrative and criminal proceedings should be carried out only under suitable safeguards provided by national law.
Principles of Exception
Exceptions to the protection of safety information should only be granted by national laws and regulations when:
- There is evidence that the occurrence was caused by an act considered, in accordance with the law, to be conduct with intent to cause damage, or conduct with knowledge that damage would probably result, equivalent to reckless conduct, gross negligence or willful misconduct;
- An appropriate authority considers that circumstances reasonably indicate that the occurrence may have been caused by conduct with intent to cause damage, or conduct with knowledge that damage would probably result, equivalent to reckless conduct, gross negligence or willful misconduct;
- A review by an appropriate authority determines that the release of the safety information is necessary for the proper administration of justice, and that its release outweighs the adverse domestic and international impact such release may have on the future availability of safety information.
Subject to the principles of protection and exception outlined above, any person seeking disclosure of safety information should justify its release.
Formal criteria for disclosure of safety information should be established and should include, but not necessarily be limited to, the following:
- Disclosure of the safety information is necessary to correct conditions that compromise safety and/or to change policies and regulations;
- Disclosure of the safety information does not inhibit its future availability in order to improve safety;
- Disclosure of relevant personal information included in the safety information complies with applicable privacy laws;
- Disclosure of the safety information is made in a de-identified, summarized or aggregate form.
Responsibility of the Custodian of Safety Information
Each SDCPS should have a designated custodian. It is the responsibility of the custodian of safety information to apply all possible protection regarding the disclosure of the information, unless:
- The custodian of the safety information has the consent of the originator of the information for disclosure; or
- The custodian of the safety information is satisfied that the release of the safety information is in accordance with the principles of exception.
Protection of Recorded Information
Considering that ambient workplace recordings required by legislation, such as cockpit voice recorders (CVRs), may be perceived as constituting an invasion of privacy for operational personnel that other professions are not exposed to:
- Subject to the principles of protection and exception above, national laws and regulations should consider ambient workplace recordings required by legislation as privileged protected information, i.e. information deserving enhanced protection; and
- National laws and regulations should provide specific measures of protection to such recordings as to their confidentiality and access by the public. Such specific measures of protection of workplace recordings required by legislation may include the issuance of orders of non-public disclosure.