Annual Report: 2002-2003

Background

In August 1999, an Inter-Canadian Fokker 28 aircraft was involved in an accident at the St. John's, Newfoundland and Labrador airport. During the Transportation Safety Board's (TSB) investigation, a journalist asked the TSB for access to the tape of the communications between the pilot and the air traffic controllers (ATC tape).

TSB refused to disclose the ATC tape because it did not have the required equipment to listen to the tape and, hence, it could not make a transcript for processing purposes. The commissioner's investigator located an ATC tape of the same incident recorded in a format which was compatible with the TSB equipment. TSB agreed to process this second ATC tape but decided to rely on the privacy exemption (subsection 19(1)) to refuse disclosure of the tape.

Legal Issues

This case raised the same issues as a complaint against TSB reported at pages 55 to 58 of the commissioner's 2001-2002 Annual Report. For a complete discussion of the issues and the commissioner's findings, the reader is referred to last year's report.

In this case, the commissioner accepted the TSB's contention that some information on the portion of the ATC tape which had not been transmitted on public airwaves (private phone numbers and comments relating to the state of mind of the air traffic controller) should be protected on privacy grounds. However, he did not accept that the entire contents of the tape qualified for privacy protection.

The TSB also argued that the public interest in learning about the cause of the accident was better served by the release of the report of the results of the TSB's investigation than by the release of the ATC tape. In response to this position, the commissioner pointed out the TSB had not issued a final report of its investigation even though almost three years had elapsed from its commencement. The commissioner stated as follows:

"I find that there is a vital public interest in access to this transcript. Without a final report to the public of the results of this investigation, release of the tape would help inform the public as to what transpired that day. The calm, cool and professional deportment of all the parties whose comments are found on that tape would reassure the public, and that clearly outweighs any invasion of privacy that might result."

Thus, the commissioner concluded that the complaint was well-founded and recommended to the TSB that the tape be disclosed. The TSB refused to accept the recommendation.

With the consent of the requester, the commissioner has applied to the Federal Court of Canada for a review of TSB's refusal to disclose the ATC tape. The matter has not yet been heard by the court.

Lessons Learned

Even though the privacy exemption is mandatory in nature, it does require government institutions to invoke it only after a careful weighing of the balance between the public interest in disclosure and the individual privacy interest in secrecy. The decision of the court in this case, and the case reported last year, will give guidance as to where the balance should lie when it comes to ATC tapes associated with air accidents.

(Note: a second complaint against TSB also related to a refusal to disclose ATC tapes. It, too, was found to be well-founded by the commissioner and, with the requester's consent, it has proceeded to the Federal Court for review.)