Many airlines are implementing Flight Operational Quality Assurance (FOQA) programs to record and analyze flight parameters (such as firm landings or high decent rates) of uneventful flights and attempt to pick out potential problem before they lead to accidents. Airline pilot unions in the U.S. are opposed to these programs because they are concerned that the data will be used to prosecute pilots, and in some cases the airlines are concerned that the data could be used against them in litigation. AVweb's law editor analyzes the legal issues involved.
April 17, 1998
|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
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
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.
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...
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
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.
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
Airline pilots and union representatives usually cite three law-related
concerns associated with the collection of FOQA data:
- That the FOQA data will be used by the FAA for Enforcement Actions against
pilots and carriers.
- 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")
- That data will be acquired by litigants during the discovery process in
In addition to these three problems commonly voiced by industry
representatives, this author raises the following additional problems that may
not be readily apparent:
- 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.
- 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.
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.
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.
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.
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
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
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
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.
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.
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
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.