Statement of Caj Frostell, ICAO

MR. FROSTELL: Thank you very much. In view of my technical background, I must say that I must have had a very weak moment when I agreed to discuss non-disclosure of records on a panel of renowned legal experts.

Let me begin with the current situation. The paragraph concerned is 5.12 in Annex 13, and the title of the paragraph is "Disclosure of Records". The first part of the paragraph is aviation-related: "The State conducting the investigation ... shall not make the ... records [listed below] available for purposes other than accident or incident investigation." Then there is the exception, which reads "unless the appropriate authority for the administration of justice ... determines that their disclosure outweighs the adverse domestic and international impact such action may have on that or any future investigations." This takes the consideration outside or beyond aviation to a judicial consideration.

The paragraph then lists the elements. All statements taken, all communications between persons having been involved in the operation of the aircraft, medical information, and as the fourth element, cockpit voice recordings and transcripts from such recordings, and lastly, opinions expressed in the analysis of information.

The paragraph continues with a slightly different thought: "These records shall be included in the final report or its appendices only when pertinent to the analysis of the accident or incident. Parts of the records not relevant to the analysis shall not be disclosed." This is quite clear. Do not routinely append a full CVR transcript to the final report. Include in the text of the final report, or as an appendix, only those lines which are pertinent to the analysis of the accident.

Paragraph 5.12 continues with a note. The note draws attention to the fact that the information contained in the records listed could be utilized inappropriately for subsequent disciplinary, civil, administrative and criminal proceedings. The note continues with somewhat of a warning: "If such information is distributed, it may, in the future, no longer be openly disclosed to investigators." When this note was introduced in Annex 13, one of the main considerations was that the note was intended to draw the attention of the judicial authorities to the problem, when they consider whether the information should be disclosed.

Now a few words about the future. In September this year, ICAO will hold an Accident Investigation and Prevention Divisional Meeting. One of the agenda items deals with amendments to Annex 13, and one sub-item with amendments to Chapter 5. The ICAO Secretariat is proposing changes to 5.12. The intent of 5.12 is to ensure that CVR recordings are not used for purposes other than accident and incident investigation. We are aware that there have been demands from other bodies, such as judicial inquiries, to have access to these recordings and transcripts. We have also noted that preventing disclosure of CVR recordings and transcripts presents a much greater difficulty to the investigators than any of the other records listed in 5.12. Partly because of this, we are proposing that the non-disclosure of recordings and transcripts should be a standard of its own. We believe that it will, in future, be easier to deal with amendments strengthening the non-disclosure of CVR recordings if it is in a separate paragraph. 5.12 has many elements. If a change is introduced to the existing paragraph, it may be difficult to immediately see the ramifications on all the elements. The CVR issue may benefit if it stands on its own.

We also are proposing a change to the paragraph heading from disclosure to non-disclosure to better reflect the intent. The proposal to the September Divisional meeting reads very much along the lines of the existing 5.12, with only slight changes to cater for the fact that the new paragraph only addresses CVRs.

A further consideration that I wish to share with you is that some people believe that 5.12 would be stronger with a full stop before the "unless" phrase. The counter argument is that if a State files a difference, then there is no further consideration of justification for disclosure. The "unless" phrase brings 5.12 beyond aviation to a judicial consideration, but whether this, in fact, is stronger, will have to be resolved by States at the Divisional meeting.

The last part of 5.12 that deals with non-inclusion of the CVR transcripts, or parts thereof, in the final report is proposed to become a sub-paragraph to the new paragraph.

As a general comment, may I say that the CVR issue is a complex issue, the resolution of which resides outside aviation. It varies with the legal framework in each State, possible Freedom of Information legislation and, in general, the legal and judicial processes and systems in a State.

So, what is the role of ICAO? It is not realistic to expect ICAO or amendments to Annex 13 to resolve this issue. What ICAO can do is along the lines of existing 5.12, that is to provide a general international regulatory framework, which will assist States to reach an acceptable solution on a national level. The fine-tuning of the national legislation and regulations must be done on a State-by-State basis, and the measures required will most likely vary from State to State.

I have only dealt with the CVR issue. The protection of data and data sources in incident reporting systems and in FOQA, or flight data analysis programmes, is an equally important issue. These issues are also on the ICAO Technical Work Programme, and they are being processed separately from the CVR issue.

Now a few words about air traffic services. The rules and regulations pertaining to air traffic services are contained in Annex 11. There are a number of Standards and Recommended Practices that relate to recording of information. These cover all air-ground communications, all ground-to-ground communication within FIRs as well as between FIRs, and radar data. As an example of the period to retain the information, the recordings of radar data should be kept for at least 14 days. The recordings in air traffic services are covered by 5.12(b) of Annex 13, that is all communications between persons having been involved in the operation of the aircraft.

Thank you very much.