Access to airline safety reports held up by court action

[Go Guns]

Access to airline safety reports held up by court action
By David McKie, CBC News Posted: Jan 22, 2013 5:41 PM ET Last Updated: Jan 22, 2013 5:37 PM ET Read 0 comments0

Porter Airlines has turned to Federal Court to prevent Transport Canada from releasing a safety inspection report under Access to Information, arguing the report contains material that is "commercially sensitive" and would "result in commercial harm."

The concerns are contained in an affidavit Robert J. Deluce, the company's CEO, filed on Sept. 12, 2012.

In light of Porter's lawsuit, Transport Canada has informed about 40 requesters, including CBC News Network's Power & Politics, that reports requested under Access to Information will not be released until the court has dealt with the legality of releasing inspection reports.

Transport Canada is not releasing airline inspection reports under Access to Information as it awaits a Federal Court ruling on the legailty of releasing reports compiled by commercial airlines under the department's Safety Management System. (Associated Press)
Transport Canada has yet to file a response and is not commenting on the case. Porter would only say in an e-mail the company believes "overall passenger safety is best served by ensuring that employees freely report safety matters without having to wonder if they will be associated with public reports. It's possible that these records can be misunderstood without proper context."

That contradicts assurances Transport Canada gave MPs on the transport committee when they were studying the department's new inspection regime for airlines that came into force in 2005.

Under the new system — known as Safety Management System, or SMS — the burden of safety inspections and surveillance falls to the airlines, which are to share the information with Transport Canada.

Transport Canada argued SMS would lead to greater safety and still give the public access to inspection reports. Critics weren't so sure. They were concerned that because those reports happened on the companies' premises, the reports became the property of the companies, and therefore were possibly exempt from the Access to Information Act.

On June 6, 2007, Franz Reinhardt, then in charge of regulatory affairs in Transport Canada's civil aviation section, was asked if the department would be able to comply with access requests under the new regime.

Reinhardt assured Bloc Québécois MP Mario Laframboise that "according to the Access to Information Act, we tell (the company) what must be made public in response to a request. There have been interpretations by the courts and there is a very clear body of case law on the subject. Unless information is likely to cause serious commercial harm because property rights are at issue, the information must be made accessible. People are very well protected."

At issue appears to be the nature of information that can be considered commercial. Although Transport Canada is not commenting and has yet to file any court documents, the department's rationale is spelled out in general terms in Deluce's affidavit.

On Feb. 9, 2012, Transport Canada advised Porter it had received an Access to Information request for what are called "Notices of Suspension issues to Porter." Such notices are departmental warnings with strict deadlines to deal with problems that could be safety related, but could also be demands to replace key personnel, like pilots, who have left the company.

Transport Canada told Porter it was considering releasing some information and wanted a written response from the company detailing why any records should be withheld.

Based on Porter's response, the department decided to release a censored version of the material in question. Porter went to court to prevent that from happening.

The president of the Canadian Federal Pilots Association has long argued that airline inspection reports would be too hard to get.

As far as Daniel Slunder is concerned, the withholding of these inspection reports, even ones that are redacted, keeps the public in the dark and ignorant about safety-related problems companies may be having.

The companies say "trust us, we're handling this," Slunder told Power & Politics.

"And Transport Canada is saying 'trust us, we're looking into this.' Now, the only time you'll hear if there's an issue is when a plane goes down, and by then it's too late."

That view is disputed by John McKenna, president and CEO of the Air Transport Association of Canada, which represents many of the country's main airlines. He says under the new inspection system, companies have to meet more rigorous standards than what Transport Canada imposes.

McKenna declined to comment directly on the Porter Airlines lawsuit.

But he said that in exchange for agreeing to submit more detailed information to Transport Canada, companies understood that the information would be protected to keep it out of the hands of competitors.

"You're opening yourself up to scrutiny by the regulator, and that's normal. But that information shouldn't be accessible to the general public. The company's first and foremost concern is safety. There's not one company that's going to be shy about what they do for safety. It's all the other peripheral information that's included that can be of commercial interest to others. That's the concern."

[grimey]

Porter Airlines has turned to Federal Court to prevent Transport Canada from releasing a safety inspection report under Access to Information, arguing the report contains material that is "commercially sensitive" and would "result in commercial harm."

The problem with releasing them under Access to Information is that it's highly selective what reports get made public. I think the reports should be public, but not through individual requests. They should be made public in the same manner as the CADORs and the major TSB investigations, so that everything's out in the open.

But Porter's right in this case. Hypothetically, say Porter has a bunch of minor issues that don't significantly affect the safety of the airline. They have been using SMS properly and have a good "true" safety record relative to other airlines. Meaning they actually are safe, they're not just bullshitting. Some disgruntled employee calls up the media and says there's a safety problem. The CBC or someone else does their job, gets the info from Porter through Access to Information, and runs a story saying they have reports of however many different issues over the last year at Porter. But because Access to Information is a pain in the ass, they don't file requests against Jazz, or any of Porter's competitors, and don't post their figures. The average reporter isn't well informed on SMS, safety audits, or how airlines actually work, and doesn't know that Porter's figures are normal. If free access was given to all of the records (which isn't what Porter's asking for AFAIK, but hey...), the media could more easily put the information into a proper context, and little to no harm would result. Instead we'd get a piece on W5 showing how "bad" things are at a good airline with one shit employee.

[ILS26_Steep]

Funny, cause they haven't gotten rid of that "One Shit Employee" two or three years ago now whom got themselves into shit with the CBC over a stupid training practice out of KMDW. Had they of canned him in the first place the original rumblings about unsafe training practices at Porter would of kept them off a reporters Radar permanently.
I remember gettin the memo about keeping our trap shut in 2010 should someone be approached by the CBC from the bossman himself.

[Big Bird Anonymous]

Didn't TCCA undergo an Auditor General audit recently? I don't think there were many 3's!!

[Driving Rain]

What a tangled web we weave, when first we practice to deceive. ( true when Walter Scott wrote those words and true now)

[horizonav]

This article is a little misleading. The headline reads " Access to airline safety reports held up by court action "
But in fact it has nothing to do with airline safety reports submitted by employees. Safety reports are confidential, and internal to the company, they are not ATIP-able (and should not be)...the requests for information being made here are for the Transport Canada PVI (Process Validation Inspection) which took place to validate the Porter SMS system. This is essentially an audit conducted by TC, in which porter (along with all other 705 carriers in Canada) had a lot of findings raised against it. Their Corrective Actions were deemed ineffective or inappropriate and they did get an NOS. Again, it has nothing to do with individual safety reports that are submitted by employees. These are not, and should not be at risk of being public records. The system is designed so that an individual can report a safety concern or incident to the airline non-punitively, the airline is obligated to investigate and resolve the concern. TC is responsible to do regular inspections to validate the airline's process for investigation and resolution, and if they are deemed ineffective the airline is required to correct them (These TC inspection reports and airline corrective actions are, and should be public records).

[bmc]

You have to be so careful with the media.

My wife is a former journalist and when she started consulting and training, she would teach people how to deal with the media. One of her exercises was to interview the senior guy and record the interview. Typical of journalists, she would end by opening the door saying, is there anything else you want to say. Well trained people shut up. Untrained start talking away. She would then produce the story and insert the quotes accurately, but slightly torquing the story. When presented, the discussion usually began with "that's not what I meant", followed by "but that's what you said".

When the Dryden Air Ontario BA146 accident happened, a good family friend working in a Toronto radio station called me to verify that the airplane had Pratt and Whitney engines. At that time there were incidents with P&W, and I can't remember what they were, but she was determined to find a link and report it in the early days after the accident.

Be very where you are. And be exceedingly careful here on Avcanada because they troll here, particularly when as accident has happened and the TSB hasn't reported anything.

[Big Bird Anonymous]

When the Dryden Air Ontario BA146 accident happened

I know you meant a Fokker F28, with all due respect.

[bmc]

When the Dryden Air Ontario BA146 accident happened

I know you meant a Fokker F28, with all due respect.

I stand corrected. Thanks mate.

[Beach 200]

The F28 also had Rolls Royce Spey engines. Not Pratts. In case anyone feels misinformed.