High court rules cockpit recordings are public information

[CD]

1998 plane crash sets precedent; High court rules cockpit recordings are public information

THE TELEGRAM (ST. JOHN'S)
Peter Walsh
05/16/2007

A court ruling was the last thing on Helen Hickey's mind as she stumbled, barely conscious, from the wreckage of Kelner Airways Flight 151 May 18, 1998 - she was more concerned with the "ball of fire in her back" from a dislocated vertebrae.

Nine years ago this week, the Pilatus PC-12 crash-landed in a bog near Clarenville after the engine cut out at 16,000 feet. Eight passengers, including Hickey, and two crew survived after gliding to a crash landing.

Ruling upheld

On April 5, the Supreme Court upheld a Federal Court of Appeal decision to order the Canadian Transportation Accident Investigation and Safety Board to publicly release transcripts of conversations between the pilots and the ground control tower.

The safety board had denied requests by media for the records, claiming they were exempt from public eyes because they were private conversations. The Federal Court and the Supreme Court disagreed and ordered their release.

"I had no idea that (the flight) was going through the courts," says Hickey, a retired office manager in Happy Valley-Goose Bay, after being informed of the ruling by The Telegram.

The court ruling sets a precedent that was welcomed by some of those connected to the case.

"It's a great thing," says Yvan-Miville Des Chenes, a retired air traffic control officer who testified in the case. Des Chenes says the ruling will help crash survivors and family members discover the truth.

"It might allow them to see if there's any tape or recording regarding a flight mishap and should there be one, they could request and get it and turn it over to their lawyer and have someone competent go over it to see if there was any wrongdoing."

Today, Helen Hickey's back still flares in pain but she knows she was lucky to walk away. She agrees with the Supreme Court decision. "I think so often things are kept hidden and people are left wondering. Now, if people are able to find out what's happening they can draw their own conclusions.

"I think it's good to know what's going on."

Passengers initially credited pilot Boyd Bursey with a deft emergency landing in the bog.

But the safety board later reported Bursey misjudged a warning light and "did not follow the prescribed emergency procedure for low oil pressure and the engine failed before he could land safely."

The report says Bursey likely could have landed the plane under engine power in St. John's if he had acted immediately upon noticing the warning light.

Soon after the bruises and shattered bones began to heal, a battle erupted between CBC-Television and the safety board.

The safety board had initially released the cockpit recording transcripts to CTV and the Canadian Press, but denied the records to the CBC, which appealed to the Information Commissioner of Canada in June 2000.

The commissioner agreed with CBC, and took the case to the Federal Court winning release of the records and in the words of its general council Daniel Brunet, "set a precedent" for future aviation incidents. Brunet says cockpit-to-control tower conversations should no longer be automatically considered private conversations, as was the policy of the safety board.

The Telegram contacted the Canadian Transportation Accident Investigation and Safety Board manager of information to request the long-awaited documents but, as of press time, had not heard back.

A spokesperson with the safety board referred public comments to Nav Canada, the private company that administers air travel in Canada and, along with the Safety Board, was also a respondent in the case. Nav Canada spokesman Ron Singer, says the company will comply with the Supreme Court decision, but had no further comment.

[XJET]

Does that mean we can now post ATC recordings on here without any mods getting fussy?

[Aunt Jemima]

Does that mean we can now post ATC recordings on here without any mods getting fussy?

Just a guess, but I would think not.

It says " to publicly release transcripts of conversations between the pilots and the ground control tower".

[Widow]

Do you think this means they will also now release recordings of ELT signals?

[CD]

Here is the link to the Federal Court ruling:

Canada (Information Commissioner) v. Canada (Transportation Accident Investigation and Safety Board) 2005 FC 384 Date: March 18, 2005

Which was overturned by the Federal Court of Appeal:

Information Commissioner of Canada v. Canadian Transportation Accident Investigation and Safety Board 2006 FCA 157 Date: May 1, 2006

With the subsequent appeal to the Supreme Court dismissed, with costs:

Judgments in Leave Applications / Jugements sur demandes d'autorisation Date: April 5, 2007

[Widow]

Somebody once told me the separation of Nav Can from TCCA was in an effort to remove liability and hide information.

The very idea of Nav Can being a "third party" as opposed to a "government agency" would seem to support this suggestion.

[CD]

I think that sounds a wee bit like a conspiracy theory...

[XJET]

Looks like cockpits will now be safer and filled with silence.

[pika]

Is there much of a difference between CVR tapes being available and this ruling? Chances are one would rather the ATC tapes be made available rather than the flightdeck banter...

[XJET]

Is there much of a difference between CVR tapes being available and this ruling? Chances are one would rather the ATC tapes be made available rather than the flightdeck banter...

Actually you're right, how does the ATC transcript show he had an engine light on??

[pika]

"It might allow them to see if there's any tape or recording regarding a flight mishap and should there be one, they could request and get it and turn it over to their lawyer and have someone competent go over it to see if there was any wrongdoing."

From the article I guess the new ruling is all for the right reasons...

[Widow]

You know, if someone screws up (wrongdoing not human error) and it hurts/kills someone, they should be held accountable.

I know this is difficult for some to swallow. You see yourself as potential victims of inflammatory or frivilous lawsuits ... but that is for a court of law to decide. If you've done nothing wrong, you should have nothing to fear.

Most people (even those grieving) are capable of forgiving human error. Negligence or wrongdoing is much more difficult to "let go".

[RobZombie]

Widow, love the work your doing!

But to some it up quickly, Short of being shot down by a Surface to air missle or a major design flaw it is the PIC who will have the weight of any "accident" fall on his/her shoulders. Meaning that the accident was caused by something we did. Weather was too bad, tire was worn out, didn't get all the pax on a scale first.......etc

Now you dont need a lot of money to find a lawyer who could make your "accident " in to criminal intentions.

perhaps People want ATC tapes to see if they can sue ATC as well, who knows.

thats my 2 cents

Cheers all

RZ

[lilfssister]

We ARE required to report ourselves if we screw up, even if nothing serious happened. Navcan does internal investigations of the incidents, in order to figure out why stuff happens and try to prevent it from happening again.

In accidents or serious incidents, TC and and NC perhaps TSB review the recordings and written material related to these events. If deficincies in performace or procedures are detected the site is expected to implement changes to ensure it doesn't happen again.

Except in the case of negligence being detected, this is all generally non-punitive, which perhaps encourages us to comply with the direction to report ourselves. It can still be stressful for those involved, as you never know what the investigting body will decide. If we thought the general public/press/lawyers etc. would have access to rip our performance apart, with little or no understanding on the part of many, and the desire for sensationalism by the press, people might be more likely to try to cover up what they consider "small" things, thereby losing the knowledge gained by the internal investigations.

[lilfssister]

Somebody once told me the separation of Nav Can from TCCA was in an effort to remove liability and hide information.

The very idea of Nav Can being a "third party" as opposed to a "government agency" would seem to support this suggestion.

And on another note...NC bought the assets of the ATS system from the govt.

We do not get money from the govt, but soley through bonds, (not the bad buy a job pilot kind!) and user fees, and selling our technology. So we are no longer a govt agency/dept as of 10+ years ago.

I still admire your drive and tenacity in your quest, Widow, but you have to understand that other than being governed by the CARs, and having to release information to TC and TSB on request, we have nothing to do with the govt.

[lilfssister]

Is there much of a difference between CVR tapes being available and this ruling? Chances are one would rather the ATC tapes be made available rather than the flightdeck banter...

ARE CVR tapes released in Canada?

[lilfssister]

Do you think this means they will also now release recordings of ELT signals?

An ELT signal is just a noise...doesn't tell you anything unless you have a sattelite to locate the signal.

[Widow]

Now you dont need a lot of money to find a lawyer who could make your "accident " in to criminal intentions.

I hope you aren't referring to CGAQW. If you are, you've missed one of my big gripes ... the cops won't prosecute and everyone on board was working so we CANNOT sue. It's not that we want money, but we do want accountability.

I still admire your drive and tenacity in your quest, Widow, but you have to understand that other than being governed by the CARs, and having to release information to TC and TSB on request, we have nothing to do with the govt.

I understand this, I just don't like it! It doesn't seem to me that it should be privately run any more than the BC Ferry Service should. Having my own problems with Access to Information, I find it difficult not to be suspicious of all "hidden" information.

From what the article says, this request for information was not the result of any potential litigation (since an employee covered by WCB/OHS was hurt, they couldn't sue anyway) but a media squabble. Yet access to NAVCAN information has been the subject of dispute before.

Some of you may remember the private pilot, Herb Brown, who "disappeared" with his plane out of Langley in March 2000. After the official search was shut down, it was eventually learned that there was a recorded ELT transmission which had been "secreted away". After getting access to the recordings in July 2002, the family quickly determined it was Mr. Brown's aircraft transmitting and shortly thereafter (now knowing the time of the ELT signal and therefore having a better idea of how far along the intended route the aircraft had travelled), found the wreck and were able to bring Herb home. The process took a tortuous 17 months and brought the problems of agency co-ordination of SAR efforts to the House of Commons.

[lilfssister]

SAR and TSB would have access to recordings. Again...all you would know is the fact that there WAS an ELT, and direction from the sight hearing it, (IF the ELT is caught by a site with VHF direction Finding capabilities) The SARSAT, or airborne search for the signal is the only thing that can find the downed aircraft.

Regarding releasing recordings...I don't know, if my loved one died, if I would want to hear the fear, panic, or whatever of their last transmissions on the radio if they were the pilot of a downed aircraft; OR have it played over and over and over on the media, You know how they love to replay stuff liike that.

[pika]

Now you dont need a lot of money to find a lawyer who could make your "accident " in to criminal intentions.

You mean like the SSV 767 where everybody walked away? I won't deny the trauma but the alledged physical injuries healed pretty quickly once the vacation pictures were supeonaed (if that is the correct use of the term).

Or do you mean the Jetsgo incident in Calgary where everybody walked away?

Or do you mean the Air Transat Azores incident where everybody walked away?

Or do you mean the Air France incident in Toronto where everybody walked away?

Or do you mean, well, you get the point.

[Widow]

Sure, the news footage from a helicopter watching my husbands body being removed from the shoreline is something I've seen enough times to burn it into my memory. Not something I wanted to see the first time, or the second, or the third ... but it is a part of what happened and a part of the truth ... and if that image helps to keep peoples minds focused on why it is important to find and make public the truth - then I accept that and am even grateful for it.

In Herb Brown's case, someone had neglected to check on that ELT signal. Yet someone knew about it, and told Mr. Brown's family to ask for it. They knew where Mr. Brown had departed from and where he was going (Langley to Chilliwack) and how long he was expected to be in the air (about 30 minutes). When the family finally got NavCan to release the ATC recordings (Mr. Brown seemed to be having visibility problems) and combined those with the "newly discovered" ELT transmission, the family was able to determine that SAR had searched the wrong area. Looking back at my notes, and if I'm not mistaken, Mr. Brown's family submitted an affidavit for use in this legal appeal.

Sometimes, a little information is all you need to fill in all the gaps and close the book.

[CID]

I think there should be some discretion when considering the release of CVR recordings. In my opinion, it's a huge invasion of privacy that exposes some real person's last words.

Some of the general banter is often fairly personal. The last few seconds are even more so.

The profession of airline pilot is one of the few that has to endure continuous recording of their dicsussions. Can you imagine being put under similar potential scrutiny during your day?

Many pilot labour unions have been successful in negotiating agreements that prevent the airline from using flight recorder data to bring charges or disciplinary action against pilots outside of an official incident/accident inquiry.

So by all means, distribute discussions that are relevant to the accident, but I think some serious discretion must be used.

With respect to your ELT "recording" comment widow, I'm not so sure I understand what you mean. Did the FSS or ATC person fail to report receiving an ELT transmission? Was there some sort of intent to hide the reception for some reason?

You know, receiving ELTs isn't exactly all that rare. The VAST majority of ELT signals are the result of careless operation during test or inadvertent activation. Somtimes a little discretion is appropriate to determine if it should be reported. There aren't enough Hercs and Buffalos in the world to follow around all the ELT signals received in a day.

With respect to Nav Canada, I don't think the arrangement is neccessarily a bad one. There have definitely been some growing pains during the transition period and they can't make everyone happy all of the time but generally they are fulfilling their obligations.

Having organizations like the TSB and Nav Canada spilt from TCCA lends a great deal of credibility to them all. These aren't just arms-length associations either.

[RobZombie]

I hope you aren't referring to CGAQW. If you are, you've missed one of my big gripes ... the cops won't prosecute and everyone on board was working so we CANNOT sue. It's not that we want money, but we do want accountability.

No I'm not implying anything of the sort, I wish you all the best in your "quest"

I'm just asking what defines an accident and what defines criminal Intention?? Any accident particularly involving people will get lawyers and the money hungry folks going for any easy buck, no matter what happened or whos at fault. a cheap lawyer will distort the facts to make a guy or girl look negligent.

I don't think any one sets out to have a grand crash and possible kill some one, yet they still get sued and sometimes jailed!!

Take care folks

RZ

[Widow]

Because it was still before the courts when I learned of it, Herb Browns family was not able to give me all the details. What I know is that when the search was turned over to the RCMP as a missing person, they requested the ATC recordings and were told no. When the family did not give up so easily, they learned that there was also an ELT transmission which had been recorded at the right time. When the family asked for these recordings they were also told "no". Now I understand privacy issues, but just what was being protected here, other than the right to say "no"? What possible motive could the family have had, other than to find Herb Brown and bring him home?

And sure, the TSB and NavCan being separate from TCCA may be a good thing - but NavCan isn't even government.

[Jess]

Any time factual information can be provided for families this is a good thing. Court cases based on incomplete information can be excrutiating. There is currently a local family who is having to endure the court case of their son's alleged murderer, listening everyday to lawyers claiming that the defendant's girlfriend did it because the deceased allegedly assulted her. (An unproven claim that I have absolutely NO faith in based on the individuals involved) When there is a lack of verifiable information people from lawyers to journalists to victim advocacy groups are able to share their extreme theories that no one can disprove.

Unfortunately pilots have been trained by experience to watch their back if something goes wrong. We've all read the accident reports that say something along the lines of "Both wings fell off due to impropper use of speed tape. Pilot failed to safely land the fuselage and tail section."

What I think they need to do is find a way to realease information in an accurate non-judgemental way so that families have access to whatever they feel will help them heal, but not force pilots to fear for their careers and their life savings every time something outside of their control goes wrong.