May 2008

Court Holds Aviation Safety Action Program (ASAP) Materials Not Protected by Privilege

Holland & Knight Newsletter
Judy R. Nemsick

In litigation arising out of the Comair crash at Lexington, Kentucky, on August 27, 2006, the District Court adopted the magistrate judge’s rulings that no statutory or regulatory privilege prevented disclosure of Comair’s ASAP reports, and no common-law or self-critical analysis privilege protected them either.1
Comair admitted that Congress had not created a statutory privilege specifically for ASAP materials or other safety reports voluntarily shared by an airline with the FAA. Comair argued, however, that the court should read a privilege into 49 U.S.C. § 40123, the statute which protects certain safety and security information submitted to the FAA from disclosure to the public. Comair contended that without recognition of such a privilege “[t]he ASAP will wither and die.” The court considered Comair’s policy arguments to be unconvincing and directed at the wrong forum, stating that “[i]f disclosure of ASAP reports to litigants under a confidentiality order presents a serious danger to air safety, Comair and the amici should implore the FAA or Congress to change the regulations or statute to preclude disclosure to litigants … .”

Further support for the court’s decision could be found in the plain language and legislative history of § 40123, which showed that the concern was with the release of the information to the “general public.” The corresponding regulations, however, expressly provide for specific exceptions that allow disclosure, namely to correct a condition that compromises safety, to carry out a criminal investigation, and when ordered to do so by a court of competent jurisdiction. 14 C.F.R. § 193.9, 193.7(f).

The court also found its holding to be consistent with other district court decisions. In Vinton v. Adam Aircraft Indus., Inc. 232 F.R.D. 650, 665 (D. Colo. 2005) and In re: Air Crash at Belle Harbor, New York, 02 MDL 1448 (S.D.N.Y. Aug. 14, 2007), the courts determined that while the regulations restricted FAA disclosure, they were not intended to create a privilege for the airline to prevent disclosure in subsequent litigation. The regulations also do not allow “unfettered disclosure” as argued by Comair; rather, disclosure is limited by a court order. The Lexington court, thus, concluded that providing ASAP reports to the plaintiffs under a confidentiality order was not a release to the “general public.”

The court also determined that no common-law or self-critical analysis privilege applied to Comair’s ASAP materials, and found misplaced Comair’s reliance on In re Air Crash Near Cali Colombia,, 959 F. Supp. 1529 (S.D. Fla. 1997) and Tice v. American Airlines, Inc., 192 F.R.D. 270 (N.D. Ill. 2000). Both decisions were decided before the FAA issued its final regulation expressly authorizing disclosure by court order. Moreover, the decision in Air Crash Near Belle Harbor, supra, had expressly held that ASAP materials failed the test for self-critical analysis privilege because they are not based on “in-house” review and the FAA itself does not hold ASAP information in strict confidence and may be obliged to release the information for various reasons.

1 In Re Air Crash at Lexington, Ky., No. 5:06-CV-316-KSF, 2008 WL 474373 (E.D. Ky. Feb. 19, 2008). 

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