FocusOn...Protected information -
7 December 2021
Annex 13, Regulation (EU) No 996/2010 and national regulations specify evidence that is not permitted to be released outside of the investigation without the Investigator in Charge being instructed to do so by the appropriate authority after a balance test has been carried out. However, a number of stakeholders contend that there is a need for protected information to be released to support various goals.
For example, regulators sometimes request such evidence to support Continuing Airworthiness; lawyers and the relatives of the victims of an air accident often ask for the disclosure of sensitive information (e.g. CVR) for a variety of purposes; journalists who want to quickly and accurately inform the public may seek privileged information, etc.
The FocusOn… session presented the legal position and views from a range of stakeholders on the release of protected information. It also explored how different national legal systems may lead to different approaches on the way to decide on the release of sensitive information.
Speakers and Content
Matt Greaves – ESASI – Moderator – welcomed the participants to the ‘FocusOn… Protected information’ online event. He gave a brief introduction to ESASI, its role as a CIO (Charitable Incorporated Organisation) and the ‘FocusOn…’ series. The session was recorded, although respecting the ‘Chatham House Rules’ was encouraged.
The meeting commenced with about 100 sites online and this number increased during the meeting. The following table displays the summaries, the pdf file of the slides (when used) and the video recording for each speaker. All speakers validated the summary of their respective interventions. The presentations and/or the video recordings are released with their kind permission.
1) Annemarie Schuite, Dutch Safety Board
Annemarie will introduce the international legal framework on the protection of sensitive safety information that is in place in ICAO Annex 13 and Regulation (EU) No 996/2010. She will then provide a short overview of the very strict rules in Dutch national law and describe a number of legal challenges.
2) Robert Lawson, Clyde & Co LLP
Rob will address the legal principles in play in determining what can be released and the tests as applied by the courts in decided cases to date. In doing so he will consider the conflict of interests between the objectives of accident investigation and those involved in litigation, and how the law and courts have balanced those competing interests
3) Bernd Osswald and Michel Martin, Airbus Helicopters
Bernd and Michel will present Airbus Helicopter's policy on the protection of sensitive safety information. They will also highlight their need to communicate key safety information to their customers, while this information is under the prerogative of the safety investigation authority, which has not yet made it publicly available at this stage.
4) Alessandro Cometa, EASA
Alessandro will introduce how EASA manage sensitive safety information coming from the accident investigation field. He will then describe the Continuing Airworthiness processes which are (also) based on safety information coming from ongoing Annex 13 investigations, together with other important aspects related to the safety of Air Operations.
5) Tim Hepher, Reuters
Tim will present the point of view of journalists who seek to inform the public with accurate information in a timely manner. In doing so, Tim will explain that they are also faced with speculations found on social media while the authorities have not released information either because it is protected or because it still needs to be validated.
6) Olivier Ferrante, ESASI
Olivier will wrap-up the discussions and provide an update on related activities on Protected Information, which have been going-on within the AIG Panel.