Porter's past secret problems spark concerns... Globe & Mail

[Rockie]

Where the violations of government regulations are minor, have had no lasting impact on the safety of the public, and the public interest is deemed to be served best by a confidential reporting system which would be undermined by their disclosure

The problem is who "deems" the information to be relevant or not, and public safety regarding a public transportation company is not a matter of confidentiality.

If you don't like the law as it stands, it's your duty as a citizen to campaign against it and to try to elect a government that will change it.

I completely agree.

Let me ask you this: how would public disclosure lead to improved public safety?

Come on, do you really need to ask that?

[photofly]

The problem is who "deems" the information to be relevant or not, and public safety regarding a public transportation company is not a matter of confidentiality.

I'm not sure that a question of relevance arises, anywhere. If an SMS system is promoted as a confidential reporting mechanism then you can't argue it's not confidential. If information is treated as confidential, then it is confidential.

Let me ask you this: how would public disclosure lead to improved public safety?

Come on, do you really need to ask that?

I need to ask you to be explicit because that link (which you haven't made) lies at the heart of your demand for disclosure. It seems to me that the potential benefits of public disclosure - which include "shaming" the company into improving in the future, alerting customers to fly with other airlines because of continuing problems and whatever else you can think of - have already been negated or achieved by other means. If there's no remaining improvement in public safety that could be achieved by disclosing the exact details of the report then there's no possible argument that public safety requirements outweigh the commercial privacy of the organisation. Mere prurient interest in the internal workings of an airline in which you have no involvement are not sufficient to force the government to tell you all. As Lord Wilberforce said in British Steel Corp v Granada Television Ltd [1981] AC 1096 “There is a wide difference between what is interesting to the public and what it is in the public interest to make known”.

Make a compelling argument that public safety will be improved by disclosure and I - and more importantly the courts and Transport Canada - will see it your way.

[Rockie]

Confidential reporting pertains to individuals. I don't know where you and others get the idea the safety record of a corporation engaged in commercial public transport is confidential.

I didn't think I would have to explain this either but I guess I was wrong. If a corporation knew their dirty little safety secrets would be easily accessible public knowledge they would care a lot more about not having any. On the other hand if they knew the regulator wasn't looking very hard for those secrets and would keep them secret even if they found out.... What a great system that would be, right?

I'll give you a practical example. If anyone bothered to look in public records they would have discovered a certain carrier was fined $1250 for a maintenance procedure that exactly one year later a duplicate violation caused something of a major event that almost cost the lives of several hundred people. The reference was obscure but there in any event if one cared to look. Not many did unfortunately even after the much more serious second event.

[photofly]

Confidential reporting pertains to individuals. I don't know where you and others get the idea the safety record of a corporation engaged in commercial public transport is confidential.

It's very straightforward. It's written in section 20 of the Access to Information Act. The government is forbidden to release information provided by a third party in confidence except under the very narrow exceptions in the Act. This information doesn't meet any of the conditions to be excepted from the confidentiality clause in the Act so it can't be released.

I didn't think I would have to explain this either but I guess I was wrong. If a corporation knew their dirty little safety secrets would be easily accessible public knowledge they would care a lot more about not having any.

I don't agree. I think if a corporation knew that their dirty little secrets would be easily accessible public knowledge because they themselves had disclosed them to government under a reporting scheme so they had a chance of being fixed they'd care a lot more about making sure that dirty little secrets never came to light and never got disclosed to government. Which would knock it on the head for the whole SMS thing.

I get that you don't buy into the SMS idea. It's your right to hold that opinion. But your government created the scheme. The government has to follow through on that, which includes the requirement to keep the reports confidential. You can't use a bogus "public interest" argument as an axe to chop through the SMS system. You're going to have to be a lot more detailed in your "in the public interest" argument if you want to do that. The fact that it will sell extra copies of the Globe and Mail doesn't count.

[Rockie]

It's very straightforward. It's written in section 20 of the Access to Information Act. The government is forbidden to release information provided by a third party in confidence except under the very narrow exceptions in the Act.

Except if it involves public safety or public interest which this clearly does. There is no prohibition.

This information doesn't meet any of the conditions to be excepted from the confidentiality clause in the Act so it can't be released.

Bulls**t. You don't really believe that do you?

I think if a corporation knew that their dirty little secrets would be easily accessible public knowledge because they themselves had disclosed them to government under a reporting scheme so they had a chance of being fixed they'd care a lot more about making sure that dirty little secrets never came to light and never got disclosed to government.

That's possible, but you prefer institutionalized secrecy and a guarantee that none of these things will ever be publicly known?

The government has to follow through on that, which includes the requirement to keep the reports confidential.

There is no such requirement. Show me, in any law, regulation, statute, bylaw or convention where public safety information as it relates to an airline or any other public transportation company is required to be kept confidential. Show me...

[photofly]

It's very straightforward. It's written in section 20 of the Access to Information Act. The government is forbidden to release information provided by a third party in confidence except under the very narrow exceptions in the Act.

Except if it involves public safety or public interest which this clearly does. There is no prohibition.

Obviously we're reading different laws then. The Access To Information Act that I have in front of me doesn't say what you think it says. The courts don't think it says what you think it says. The Information Commissioner doesn't think it says what you think it says. And Transport Canada doesn't think it says what you think it says.

That's possible, but you prefer institutionalized secrecy and a guarantee that none of these things will ever be publicly known?

I care that the overall safety of the travelling public is the priority. Not the selling of more newspapers. And I have a government that I charge with the responsibility for maintaining that safety. I see that lapses in following the regulations have been fixed through the use of the SMS scheme. I have a dog. I don't need to do my own barking.

The government has to follow through on that, which includes the requirement to keep the reports confidential.

There is no such requirement. Show me, in any law, regulation, statute, bylaw or convention where public safety information as it relates to an airline or any other public transportation company is required to be kept confidential. Show me...

There's no such thing in law as "public safety information". There's "technical information that is confidential information supplied to a government institution by a third party and is treated consistently in a confidential manner by the third party" and there's "information the disclosure of which could reasonably be expected to result in material financial loss or gain to, or could reasonably be expected to prejudice the competitive position of, a third party" - both of which are forbidden to be disclosed except under the narrow tests for exemptions - tests which aren't met in these circumstances.

That's section 20 of the Access to Information Act. It's all there in plain English.

[Rockie]

Obviously we're reading different laws then.

No, same act. This is a prohibition:

"20. (1) Subject to this section, the head of a
government institution shall refuse to disclose
any record requested under this Act that contains"

This is the section pertaining to public interest, public health, public safety and protection of the environment - and is definitely not a prohibition:

"(6) The head of a government institution
may disclose all or part of a record requested
under this Act that contains information described
in any of paragraphs (1)(b) to (d) if

(a) the disclosure would be in the public interest
as it relates to public health, public
safety or protection of the environment; and

(b) the public interest in disclosure clearly
outweighs in importance any financial loss
or gain to a third party, any prejudice to the
security of its structures, networks or systems,
any prejudice to its competitive position
or any interference with its contractual
or other negotiations."

If Enbridge wanted to run a pipeline through your neighborhood would you want to know what their safety record is with spills? If you had to fly on an airline you had heard some rumblings about wouldn't you want to know details? How about a railroad that had poor track maintenance and you wanted to know how many derailments they've had before booking that lovely trip through the rockies? Don't you think you have a right to know this stuff as a consumer?

And I have a government that I charge with the responsibility for maintaining that safety. I see that lapses in following the regulations have been fixed through the use of the SMS scheme.

How do you see anything without disclosure? You're either joking or just being argumentative.

[photofly]

If you had to fly on an airline you had heard some rumblings about wouldn't you want to know details?

What I want to know is an entirely different question from what is in the interest of public safety to be released. The Act quite plainly doesn't entitle me to know whatever I want.

Information may be released when the public safety angle clearly out weighs in importance the commercial disadvantage. In my opinion, and in the opinion of everyone who has to make that decision for real, the information in these particular cases doesn't pass that straightforward test. If you think it does, and you put together a cogent explanation to show why (you haven't so far) then you have a case to argue. I look forward to reading it!

[Rockie]

The access to information act predates SMS by a good number of years, and before SMS disclosure was much more open as the article indicates. Nothing bestows the "confidential" status on SMS reports or TC actions in relation to a company. There is nothing proprietary about SMS reports, they do not contain "trade secrets", and whatever technical information they contain has to do with safety rather than core business products.

It is not for me to present a cogent argument why public safety documents should be accessible when the argument makes itself, and which should be the default position - which it once was before this blanket of secrecy fell over all government operations and access to information requests. Rather, it should be up to a company (or you) to present a cogent argument why public safety documents should not be accessible.

the information in these particular cases doesn't pass that straightforward test.

You're wrong about the innocuousness of the information and that it is a straight forward test. It is completely subjective test and this government has taken the default position of secrecy in everything they do when it should be the other way around. That's the way a free and open society works.

[photofly]

The access to information act predates SMS by a good number of years, and before SMS disclosure was much more open as the article indicates. Nothing bestows the "confidential" status on SMS reports or TC actions in relation to a company. There is nothing proprietary about SMS reports, they do not contain "trade secrets", and whatever technical information they contain has to do with safety rather than core business products.

What bestows confidential status on the contents of the report is that the data in them is provided to the government by a third party and treated in confidence by that third party. The law states plainly that that alone is sufficient.

20.1 contains an "or" clause. The records have meet any one of the criteria to be protected from release, not all of them. Since SMS reports are both technical information that is considered confidential by the third party and could be reasonably expected to cause financial loss on disclosure, they're protected on two grounds. It doesn't make any difference if the information is proprietary or not, core business related or not, or trade secrets.

the information in these particular cases doesn't pass that straightforward test.

You're wrong about the innocuousness of the information and that it is a straight forward test. It is completely subjective test and this government has taken the default position of secrecy in everything they do when it should be the other way around. That's the way a free and open society works.

I'm not sure what the default position is, or even if there is one. What the government does in other cases is irrelevant to us; we must judge each issue on its own merits. Nor do I believe there's anything subjective about the test which I find quite easy to apply in this case.

The case that Porter might make to argue against disclosure is straightforward and logical:
1. The matters have already been corrected to the satisfaction of the regulator so no improvement to public safety could be obtained by disclosure
2. Disclosure of minor SMS findings would hinder future SMS reporting which is predicated on a level of confidentiality. Damaging the SMS system would be a detriment to public safety rather than assist it.
3. Disclosure is bound to cause significant commercial loss by needlessly alarming passengers and preventing them from booking for fear of safety issues that have already been corrected.

I doubt that we disagree on point 3. In fact I suspect that you're hoping to see that damage done because for some reason you have a hard-on for damaging Porter Airlines. But that's beside the point. What I'd like to read is a measured explanation of how public safety will be served by disclosure. I haven't seen it yet.

By the way, I believe there's a procedure under the Act where Porter would have been given notice of the intent to disclose and given the opportunity to make an argument against it. TC itself doesn't give a hoot if the information is disclosed, and it's not "government secrecy". It's Porter making a case to Government that disclosure of Porter's confidential information is not permitted in this case. And they're right.

[Rockie]

The judge ruled against Porter in that case, and then allowed basically indiscriminate redacting of the reports he ordered released. Sounds to me like he was unable to make up his mind. And in the article the head of First Air and the Federal Pilots union head make clear cases for why this information should be accessible to the public.

A good example of when keeping secrets is detrimental to the public is a certain defunct happy face airline. If the public knew half of what that company did they would have demanded they be shut down and rightly so. That company was protected - everybody in the industry knew it - and secrecy allowed it.

I also have nothing against Porter. The same standard should be applied to every operator including mine. Level playing field for all and if companies don't like seeing their name in print for excessive safety issues they'll try harder not to have any. Even you must be able to see how that benefits the public. If they can't keep their name out of print for excessive safety issues then who gives a s**t about their finances suffering except them? They have the power to change it.

The question is why would you want to protect a company like that?

[photofly]

And in the article the head of First Air and the Federal Pilots union head make clear cases for why this information should be accessible to the public.

After much effort, I'm unable to draw any such argument from what's written in the article. I should be grateful if you could make it explicit for me.

...and if companies don't like seeing their name in print for excessive safety issues they'll try harder not to have any. Even you must be able to see how that benefits the public.

What I see is that if companies don't like seeing their name in print for safety issues they'll fight tooth and nail against a system that requires them to volunteer their own safety issues in confidence to the attention of the government only to see them on the pages of the Globe and Mail. Then safety issues won't be addressed when they should be. Even you must be able to see how that will work against the public interest.

[Rockie]

After much effort, I'm unable to draw any such argument from what's written in the article. I should be grateful if you could make it explicit for me.

"Greg McConnell, president of the Canadian Federal Pilots Association union that represents government inspectors, reviewed the documents concerning Porter, but said it was difficult to conclude much given the redactions, which was a concern.

He said the documents show how Transport Canada’s work has changed over his career: “The documentation has become, almost, very secretive.”
"

"First Air CEO Brock Friesen said transparency was in the public’s best interest:"

Pretty easy to see they're not fans of the secrecy and why. You mustn't have put that much effort into it because they state it quite clearly.

What I see is that if companies don't like seeing their name in print for safety issues they'll fight tooth and nail against a system that requires them to volunteer their own safety issues in confidence to the attention of the government only to see them on the pages of the Globe and Mail.

I have some bad news for you, companies already abuse the system because there is no oversight - unless of course you think the TSB is wrong too. No oversight of a voluntary reporting system in public transportation companies, and a shroud of secrecy when they do. Some people like that system, but their interests in it aren't usually aligned with the public interest.

[photofly]

"Greg McConnell, president of the Canadian Federal Pilots Association union that represents government inspectors, reviewed the documents concerning Porter, but said it was difficult to conclude much given the redactions, which was a concern.

McConnell says there isn't enough information ("difficult to conclude much") to make an argument for public safety. That's not the basis of an argument for public safety, and asking for information to be provided merely to discover if there's a public benefit in that information being provided is called a fishing expedition. Courts don't approve fishing expeditions.

"First Air CEO Brock Friesen said transparency was in the public’s best interest:"

Friesen is saying only that it's in the public interest, but he's not saying how or why. "It's in the public interest because it's in the public interest" isn't a cogent argument either.

An argument that the information should be released because the benefit to public safety clearly outweighs the commercial damage it would cause to the third party looks like this:

If the records are released then (a) will happen, which will lead to (b) which will lead to (c) and (d), and (c) and (d) will mean fewer airplane accidents. Significantly fewer, to outweigh the loss to Porter in customers who will fly with another airline.

Nobody has put forward that argument - here or anywhere else (certainly not in the quotes you provided) - and until they do, you're not going to get the information released.

[photofly]

"Greg McConnell, president of the Canadian Federal Pilots Association union that represents government inspectors, reviewed the documents concerning Porter, but said it was difficult to conclude much given the redactions, which was a concern.

McConnell says there isn't enough information ("difficult to conclude much") to make an argument for public safety. That's not the basis of an argument for public safety, and asking for information to be provided merely to discover if there's a public benefit in that information being provided is called a fishing expedition. Courts don't approve fishing expeditions.

"First Air CEO Brock Friesen said transparency was in the public’s best interest:"

Friesen is saying only that it's in the public interest, but he's not saying how or why. "It's in the public interest because it's in the public interest" isn't a cogent argument either.

An argument that the information should be released because the benefit to public safety clearly outweighs the commercial damage it would cause to the third party looks like this:

If the records are released then (a) will happen, which will lead to (b) which will lead to (c) and (d), and (c) and (d) will mean fewer airplane accidents. That will be significant and outweigh the loss to Porter in customers who will fly with another airline.

Nobody has put forward that argument - here or anywhere else (certainly not in the quotes you provided) - and until they do, you're not going to get the information released.