Access to airline safety reports held up by court action

Porter Airlines has turned to Federal Court to prevent Transport Canada from releasing a safety inspection report under Access to Information, arguing the report contains material that is "commercially sensitive" and would "result in commercial harm."

The concerns are contained in an affidavit by Robert J. Deluce, the company's CEO, filed on Sept. 12, 2012.

In light of Porter's lawsuit, Transport Canada has informed about 40 requesters, including CBC News Network's Power & Politics, that reports requested under Access to Information will not be released until the court has dealt with the legality of releasing inspection reports.

Transport Canada is not releasing airline inspection reports under Access to Information as it awaits a Federal Court ruling on the legailty of releasing reports compiled by commercial airlines under the department's Safety Management System. (Associated Press)

Transport Canada has yet to file a response and is not commenting on the case. Porter would only say in an e-mail the company believes "overall passenger safety is best served by ensuring that employees freely report safety matters without having to wonder if they will be associated with public reports. It's possible that these records can be misunderstood without proper context."

That contradicts assurances Transport Canada gave MPs on the transport committee when they were studying the department's new inspection regime for airlines that came into force in 2005.

Under the new system — known as Safety Management System, or SMS — the burden of safety inspections and surveillance falls to the airlines, which are to share the information with Transport Canada.

Transport Canada argued SMS would lead to greater safety and still give the public access to inspection reports. Critics weren't so sure. They were concerned that because those reports happened on the companies' premises, the reports became the property of the companies, and therefore were possibly exempt from the Access to Information Act.

On June 6, 2007, Franz Reinhardt, then in charge of regulatory affairs in Transport Canada's civil aviation section, was asked if the department would be able to comply with access requests under the new regime.

Reinhardt assured Bloc Québécois MP Mario Laframboise that "according to the Access to Information Act, we tell (the company) what must be made public in response to a request. There have been interpretations by the courts and there is a very clear body of case law on the subject. Unless information is likely to cause serious commercial harm because property rights are at issue, the information must be made accessible. People are very well protected."

At issue appears to be the nature of information that can be considered commercial. Although Transport Canada is not commenting and has yet to file any court documents, the department's rationale is spelled out in general terms in Deluce's affidavit.

On Feb. 9, 2012, Transport Canada advised Porter it had received an Access to Information request for what are called "Notices of Suspension issues to Porter." Such notices are departmental warnings with strict deadlines to deal with problems that could be safety related, but could also be demands to replace key personnel, like pilots, who have left the company.

Transport Canada told Porter it was considering releasing some information and wanted a written response from the company detailing why any records should be withheld.

Based on Porter's response, the department decided to release a censored version of the material in question. Porter went to court to prevent that from happening.

The president of the Canadian Federal Pilots Association has long argued that airline inspection reports would be too hard to get.

As far as Daniel Slunder is concerned, the withholding of these inspection reports, even ones that are redacted, keeps the public in the dark and ignorant about safety-related problems companies may be having.

The companies say "trust us, we're handling this," Slunder told Power & Politics.

"And Transport Canada is saying 'trust us, we're looking into this.' Now, the only time you'll hear if there's an issue is when a plane goes down, and by then it's too late."

That view is disputed by John McKenna, president and CEO of the Air Transport Association of Canada, which represents many of the country's main airlines. He says under the new inspection system, companies have to meet more rigorous standards than what Transport Canada imposes.

McKenna declined to comment directly on the Porter Airlines lawsuit.

But he said that in exchange for agreeing to submit more detailed information to Transport Canada, companies understood that the information would be protected to keep it out of the hands of competitors.

"You're opening yourself up to scrutiny by the regulator, and that's normal. But that information shouldn't be accessible to the general public. The company's first and foremost concern is safety. There's not one company that's going to be shy about what they do for safety. It's all the other peripheral information that's included that can be of commercial interest to others. That's the concern."

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