NATIONAL POST
Tom Blackwell
12/17/2002

Quebec court asked to end privacy of black boxes: Victims' relatives want to know doomed pilots' final words: For use in lawsuits

Federal authorities are fighting a groundbreaking court battle over the privacy of cockpit voice recorders and the intimate dialogue they capture, sometimes including the final words of pilots doomed to die.

In a case expected to be decided within the next few days, several parties involved in the 1998 crash of a small passenger plane in Montreal have asked the courts to order the release of the recorder.

The Canadian Transportation Safety Board, unlike its U.S. counterpart, has always strived to keep the contents of the crucial black boxes confidential, using them for investigative purposes only.

Even police and Transport Canada are forbidden copies of them.

The agency fears the release to third parties could put a chill on conversation on the flight deck, and the subsequent co-operation of pilots who survive accidents.

"If they see that their last moments, or whatever, will be used for litigation purposes, they may in the future be less forthcoming," said Allen Harding, a lawyer for the Transportation Safety Board of Canada.

He said investigators fear the sort of situation that arose after a court in New Zealand ruled in 1997 that voice recorders could be used in civil and criminal cases there. Some local and international airline crews reportedly unplugged their recorders while flying over New Zealand airspace in response.

The government later enacted a new law to restore confidentiality.

In the Canadian case, both the pilots and all nine passengers on a chartered plane, flying from Dorval airport to Peterborough, Ont., died when a wing broke off and the aircraft crashed.

The aircraft manufacturer, Quebec's workers compensation board and relatives of the dead passengers and pilots all want the black box for use in a series of civil suits spawned by the accident. They argue the recorder contains information relevant to the civil cases.

Pointing to the experience in the United States, they say fears of a pilot chill are unwarranted.

U.S. investigators not only publicly release a transcript of relevant parts of the tape several weeks after a crash, but routinely hand over copies of the tape for use in civil cases, said George Pollock, lawyer for the families of the Propair pilots.

"There is no evidence that dissemination of the information in the U.S. has had any impact on the ability of the FAA to investigate accidents," he said.

The parties have agreed they would not release the tapes publicly and if they were used in court, measures would be taken to prevent publication of them.

Even so, crew members say that release is misuse of a tool they say was meant to improve safety -- not help aportion civil or criminal blame, said Jim Stewart, a spokesman for the Air Line Pilots Association. Both his group and the Air Canada Pilots Association intervened in the case to argue for the continued sanctity of the tapes.

"It's a critical issue," Mr. Stewart said. "Do we allow voice recording in operating theatres? This is our workplace."

He said pilots are especially concerned about preserving the confidentiality of the voice boxes because of discussion among safety agencies about installing an even more intrusive feature on the flight deck -- video recorders.

As for investigators, they not only find the recorders to be crucial, but rely on surviving pilots to come forward after the fact and answer questions about what they said on the black box, Mr. Harding said .

That kind of help could well fall by the wayside if the Montreal court sets a precedent that allows the instruments to be divulged more widely, he said.

Chris, Very interesting article and definately relevant to what Mark and I are trying to accomplish regarding the draft report. I should clarify that a little. We think that the draft should be available to all family members of sr111 because I think many of us would like to know why our loved ones are dead and that is our reason for wanting to see that report. We also feel that we should have the opportunity to comment on the report if after reading it we want to do so.

"There is no evidence that dissemination of the information in the U.S. has had any impact on the ability of the FAA to investigate accidents," he said.

I wonder if he meant the NTSB?

Darn forgot to add one thing. I think it is important that the family members of sr111 see the draft report because the more open an investigation, the greater the chance that the results are honest and upfront.