April 17, 1998 FOQA: Are Legal Issues Interfering with Safety Improvements?

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by	Phillip J. Kolczynski

About the Author ... Phillip J. Kolczynski manages his own law firm in Irvine, California. He has a national practice, concentrating in aviation, product liability and business litigation in federal and state courts. Phil teaches evidence, product liability and aviation law at the Aviation Safety Program, School of Engineering, University Of Southern California. He chaired the 1990 ABA National Institute on Aviation Litigation in Washington, D.C., and has spoken nationally at numerous aviation litigation symposia. Prior to moving to California in 1983, he was a trial attorney in the Aviation Unit, U.S. Department of Justice, Washington, D.C., and the Litigation Division, Office of the Chief Counsel, Federal Aviation Administration, Washington, D.C. Phil graduated from Case Western Reserve School of Law, Cleveland, Ohio, in December, 1976, and attended college at Marquette University, Milwaukee, Wisconsin, in 1969 where he held a Navy ROTC Full Scholarship. Before entering law school, he was a Marine Corps Captain and F-4 Phantom Pilot. He is a Commercial Pilot with instrument and multiengine ratings. AviationLaw@AVweb.com AviationLawCorp.com

Flight Operational Quality Assurance ("FOQA") programs are an attempt by airlines to identify data from uneventful airline flights in order to pick out potential problems and correct them before they lead to accidents. A FOQA program requires the installation of a Quick Access Recorder ("QAR") onboard an airliner to record flight parameters. Data is collected to determine whether the aircraft is deviating from standard procedures or operating limitations. A computer analysis is performed to identify safety trends and take action to prevent accidents.

FOQA programs have been used for many years by foreign carriers with success. Currently, some 33 foreign carriers and at least four U.S. airlines have some form of FOQA program in progress. United Airlines has the oldest FOQA program. U.S. Airways, Continental and Alaska have implemented FOQA programs. American Airlines does not have a FOQA program, but does participate in a Safety Action Program which is a joint effort between the Allied Pilots Association (American Airlines' pilot union) and the FAA, which encourages pilots to report potential safety problems to the FAA.

The FAA has a number of such voluntary disclosure programs. The most famous is the "Aviation Safety Reporting System" (ASRS) Program. Pilots should be familiar with the ASRS Form, which can be filed with NASA within 10 days of a violation to obtain sanction immunity after a flight violation. Another similar program is the Air Carrier Voluntary Disclosure Reporting Program which allows air carriers to report instances of non-compliance to the FAA and still avoid legal enforcement actions seeking civil penalties.

The major distinction between a true FOQA program and various FAA Safety Reporting Programs is the fact that FOQA depends upon the automatic and digitized collection of objective flight parameters, while the Safety Reporting Programs depend upon subjective and voluntary disclosure of errors or non-standard practices. Thus, a FOQA program objectively determines exactly what happened, whereas a Safety Reporting Program expects people to report why something has happened.

How Does a FOQA Program Work?

A carrier purchases a Quick Access Recorder (priced at under $20,000) and obtains the necessary Supplemental Type Certification to integrate the recorder with various sensors on the aircraft to measure the flight parameters. A FOQA Quick Access Recorder is not limited to the same data as a Flight Data Recorder ("FDR"). QARs frequently collect more than four times as much data as an FDR. Moreover, a Flight Data Recorder is normally limited to only 25 hours of flight time, whereas a FOQA Quick Access Recorder can be programmed to record for an extended period of time.

FOQA data is processed through a Quick Access Recorder by a variety of means:

• A PC memory card or PCMIA card can be utilized to record data;
   
• Tape cartridges can be used to collect data;
   
• Data can be transferred by radio data link at the time of landing. Encryption software can be used to protect against security breaches.

Regardless of the technical method employed to collect or transmit the data, the FOQA objective is the same: the recording of flight parameters to capture deviations from "norms," followed by computerized evaluation of trends, which suggest safety hazards.

FOQA programs can focus on interesting parameters, such as the number of overly hard landings performed in one month, the duration of engine overtemp conditions, or how many times an unusually high descent rate was used on an approach. Let's say, for example, that data collected reveals that one out of five flights involved an unecessarily high rate of descent or deviations below the prescribed flight path on a particular approach. The collection of such data can lead to the re-examination of the design of the approach procedure resulting in revisions that are less susceptible to deviation.

Sounds great, right? What's the problem? Three guesses...

FAA Involvement in FOQA Programs

The FAA is actively involved in promoting the collection of FOQA data and is developing an Aviation Performance Measuring System to enable the FAA to conduct automated analysis of FOQA data supplied by air carriers. Additionally, the FAA is working on an Advisory Circular to explain how carriers can implement a FOQA program.

Finally, the FAA is supposed to be issuing a Notice of Proposed Rule Making (NPRM) which will spell out by exactly how the data collected in FOQA programs will be protected by the agency. A major conflict for the FAA is that under The Federal Aviation Act and the FARs, the agency is supposed to prosecute flight deviations that affect safety.

Fear That FOQA Data Will Be Used for Legal Actions

Pilot unions — and to some extent the air carriers themselves — are afraid to implement FOQA programs because of the FAA. The single greatest impediment to the successful adoption of FOQA programs is the fear that data will be used by the FAA, or by civil litigants, against the pilots or airlines who generated the data.

Airline pilots and union representatives usually cite three law-related concerns associated with the collection of FOQA data:

1. That the FOQA data will be used by the FAA for Enforcement Actions against pilots and carriers.
2. That the data, once turned over to the FAA, will be made available to the media and public under The Freedom of Information Act ("FOIA")
3. That data will be acquired by litigants during the discovery process in civil lawsuits.

In addition to these three problems commonly voiced by industry representatives, this author raises the following additional problems that may not be readily apparent:

1. If the FAA can't use FOQA data to prosecute pilots, then pilots will not be able to use FOQA data to defend themselves against FAA enforcement actions.

2. What is to prevent employers from using FOQA data to bring disciplinary action against employees? In those airlines with unions, pilot advocates will surely negotiate contractual protection against such usage in return for pilot cooperation in implementing FOQA programs. But what about airlines that do not have collective bargaining agreements?

The following sections will explain each of these problems and discuss options, safeguards and possible solutions.

FAA Enforcement Actions Using FOQA Data as Evidence

An Administrator of the FAA has publicly announced that the agency would not use FOQA data for pilot license enforcement actions. FAA attorneys, however, have raised serious legal questions regarding the FAA's statutory obligation to use evidence of flight violations to bring enforcement actions for public safety. What if the FAA can gain access to FOQA data which reveals that an airliner was not in condition for safe flight, or that the pilot lacked the proper qualifications to conduct the flight in question?

The FAA has announced that it will attempt to issue a Notice of Proposed Rule Making in order to strike a balance between the agency's police function on one hand, and its goal of protecting safety by enticing carriers to share data with the FAA. The FAA promised the NPRM on FOQA by December, 1997, but it has still not been issued.

Pilot organizations have made clear that they will not cooperate with a FOQA program which allows the FAA to use data turned over to the agency to bring enforcement actions against the pilots. Pilots will need strong immunity language in any such regulation before they will feel comfortable in agreeing to work under a QAR "microscope."

While the FAA may agree not to bring "legal" enforcement actions against pilots , pilots also need protection against "administrative" actions by the agency which might impact on their careers. One distinction between Safety Reporting Programs and FOQA programs is that individuals who submit reports under Safety Reporting Programs necessarily have an opportunity to edit their disclosures before divulging information to the FAA. Under a FOQA program, data collection is automatic. Even if airline pilots supervise the "collection" of the FOQA data, the people who could be most seriously affected by the data may not be involved in the data "analysis" process at all. Thus, a computer or a person in the FAA could be interpreting the data, whereas with a Safety Reporting Program, the pilot or airline employee has already evaluated the data before reporting it.

Pilot groups have emphasized the importance of "de-identifying" data obtained through FOQA programs before it is recorded at the airline or turned over to the FAA. This de-identification process may be one effective method of protecting the aviators involved. However, it provides little protection for the airlines. Thus, while the pilot's certificate may not be exposed by FOQA data, the air carrier operator's certificate may be subject to a civil penalty action unless the FAA formally adopts a policy in a regulation which assures the carrier that such data will not be used for enforcement. There is some precedent for FAA restraint in this area in the form of existing statutes and regulations pertaining to CVR and FDR information.

How Are CVR and FDR Data Protected?

The Cockpit Voice Recorder ("CVR") data is retrieved after accidents for NTSB reconstruction of the probable cause of an accident. CVRs are not designed or installed to allow routine retrieval of data after uneventful flights. Flight Data Recorders are also installed for post-accident analysis and are not designed for routine retrieval of data, although airlines do extract such data on some occasions.

The CVR data cannot be used in FAA enforcement actions pursuant to specific Federal Aviation Regulations, e.g., 121.359(f). Special Federal legislation, 49 U.S.C. Section 1154, has protected the CVR tape from discovery in civil litigation without a Special Court Order. The FDR is only supposed to be used in FAA enforcement actions for the corroboration of independent evidence. At least this is the policy established in the FAA Enforcement Handbook (FAA Order 2150.3). However, there are published NTSB decisions in which the FAA has used FDR information to try to suspend pilots' licenses, notwithstanding the "corroboration only" policy in the Enforcement Handbook.

Media and Public Access to FOQA Data Through FOIA

The Federal Freedom of Information Act (FOIA) is designed to allow members of the public to gain easy access to government documents as one benefit of living in a democratic society. However, there are a number of "exemptions" to this broad disclosure law, whereby a government agency can properly withhold disclosure of documents and information it has received from a private entity. The classic example involves "exemption 4" to the FOIA, which protects trade secrets as well as commercial and financial information which is obtained from a private entity on a confidential basis.

Recently, Congress enacted the Federal Aviation Reorganization Act of 1996 (49 USC Section 40123) which gives the administrator of the FAA the right to withhold "voluntary" submitted information from disclosure where it affects flight safety or security, and disclosure would inhibit the free flow of such information to the agency. The FAA is supposed to issue regulations to implement the authority granted by the Federal Aviation Reorganization Act, but the FAA has not yet done so. There will always be some risk that a Court will overturn an agency's decision to withhold disclosure of safety data. Any regulations promulgated under this new law will be in conflict with Clinton Administration policy which strongly supports a liberal policy of disclosure under FOIA. Furthermore, this law is in conflict with the legislative intent behind the Freedom of Information Act which was to require broad public disclosure of information in the hands of the government.

Another issue for concern is that The Federal Aviation Reorganization Act grants the FAA the right to withhold "voluntarily" submitted data from disclosure. What if the agency has acquired data which was not "voluntarily" submitted? FOIA's liberal disclosure policy may force the FAA to reveal the data. What if the FAA, while conducting an inspection or investigation of a carrier, "requests" FOQA data? The act of turning over the data by the carrier in response to an official "request" may not be considered voluntary and may leave the data vulnerable to public disclosure.

Discovery of FOQA Data in Civil Litigation

The airlines are particularly vulnerable to civil litigation discovery demands which might focus on FOQA data which has been routinely collected for safety purposes. A plaintiff would love to prove that a hard landing accident occurred after the airline had collected FOQA data revealing numerous prior hard landings.

Generally speaking, the Rules of Civil Procedure in most jurisdictions allow liberal discovery of any matter which is not covered by special privilege, as long as the information sought is relevant or likely to lead to the discovery of relevant evidence.

Many lawyers are familiar with the story of a defendant who protested to the Court about the discovery demands of the Plaintiff on the basis that the plaintiff was obviously engaged in a "fishing expedition." The Court permitted the plaintiff to go on a "fishing expedition" as long as it logically could lead to the discovery of relevant and admissible evidence. The justification for such "fishing" is that the plaintiff, who has the burden of proof, has a right to conduct discovery to acquire evidence in support of their claims.

Most jurisdictions recognize the rights of a defendant to apply for a protective order to prevent discovery demands which are unduly burdensome or expensive. The Courts use a balancing test to weigh the right of the plaintiff to obtain discovery against the claims of a defendant that providing such discovery would be unfair.

Recently, airlines have tried to convince Federal Courts that safety data collected under FAA sponsored voluntary disclosure programs should be protected from discovery under a special privilege called the "Self-Critical Analysis Privilege." The Self-Critical Analysis Privilege has been recognized by some lower Federal Courts as a shield to protect internal safety reviews from discovery. The rationale in protecting such information from discovery is that requiring production of the data would hamper candid self-evaluation geared towards the prevention of future accidents. The Courts are reluctant to recognize the privilege unless there is proof that if discovery were allowed, the flow of such information would be curtailed. Many of the cases which have recognized this privilege protect only subjective impressions and opinions of the organization, not the objective facts it collects. This could be a real problem for FOQA data because the true value of a FOQA program is that it collects objective factual data to be distinguished from the subjective reports submitted through Safety Reporting Programs.

Recently, in litigation resulting from the American Airlines' air crash near Cali, Colombia, on December 20, 1995, lawyers were unable to persuade the Court to adopt a new privilege for the American Airlines' Safety Action Program. The decision of the Court in the Cali, Colombia American Airlines Disaster case is on appeal to the Circuit Court of Appeals. As of yet, there is no Circuit Court Decision protecting airline voluntary disclosure programs or any FOQA data collection program.

The risk of discovery in civil litigation is not limited to discovery demands from the airlines. The parties may also send subpoenas to the Federal agencies involved, such as the FAA. Without Federal legislation protecting such data from discovery in civil litigation, the FAA will either have to turn over the data or go to Court to seek a protective order to prevent disclosure in each case which arises. Thus, it is likely that in some cases, the plaintiffs will prevail and gain access to the data.

The public policy in support of the discovery rules in civil litigation is so strong — and the precedent allowing liberal discovery is so pervasive — that unless legislation or the Supreme Court recognizes a privilege designed to protect FOQA type data, it is unlikely that carriers will ever be able to collect such data with immunity from disclosure in litigation.

Can FOQA Data Vindicate a Pilot?

Most pilot organizations are pressing their demands that the FAA issue a rule adopting a policy whereby the FAA will agree not to use FOQA data for FAA enforcement actions against airman. I have not seen any consideration given to the fact that if the FAA is prohibited from using FOQA data to prosecute airmen, then the airmen will not be able to use the FOQA data to defend themselves against FAA enforcement actions. Under the current state of affairs, a lawyer defending an airman who has been unfairly accused of a flight violation will try to gain access to FOQA data to prove that the airman did not commit the flight violation. If the FAA issues a rule prohibiting such use in enforcement actions, then the Administrative Law Judges of the NTSB will not be permitted to accept such evidence from the airman because of due process restrictions.

Employer Disciplinary Action Utilizing FOQA Data

Many air carriers believe they are entitled to use information collected in the normal course of their business to insure that employees are complying with all company policies, rules and regulations. In some circumstances, where pilots are members of unions, negotiated agreements can be reached to prohibit the use of such data for internal disciplinary procedures. However, where there are no such unions, pilots would need to rely on voluntarily adopted employment policies, whereby a carrier would agree not to use such data for disciplinary purposes. Alternatively, the de-identification of data may be one solution, assuming that the company is willing to entrust the de-identification process to pilot representatives.

Conclusion

FOQA programs present a new approach to aviation safety. The collection of objective data, without human intervention can allow dangerous trends to be identified and intervention steps taken to prevent accidents. The law, lawyers and the litigation process may appear to be interfering with the worthy safety goals of FOQA; however, the freedoms of a democratic society can only be protected when the competing legal rights of all parties involved are protected.

Many FAA enforcement actions are necessary and not all air crash litigation is frivolous. The FAA has an obligation to protect the flying public when there is evidence of a deviation from safe flying procedures. Air crash litigation has resulted in safety improvements and greater caution by air carriers who must reckon with the consequences of unsafe practices. We're looking forward to seeing the FAA's new FOQA rule to see how the FAA deals with the competing interests discussed in this article.

NOTE: The issues and recommendations discussed in this article are based on hypothetical situations and do not constitute legal advice. My objective is to alert you to some common issues so that you can avoid or minimize legal trouble. Anyone with an aviation law problem should be guided by the advice of his or her lawyer, under applicable federal and state laws, after a full and confidential disclosure of all relevant facts.