The use of the cockpit voice recorders (CVRs) and the flight data recorders (FDRs) during legal proceedings has become a highly contentious issue within the legal and aviation fields. Since the introduction of CVRs and FDRs, there appears to be an ongoing dispute between pilots, airline carriers, the media, as well as the legal industry regarding the use of, and access to, the significant information contained in these devices. 

One of the objectives of the South African Civil Aviation Regulations 1997 (repealed by 2011 Regulations) is to promote accident prevention by analysis of accident and incident data and by prompt exchange of information.

Part 12 of the Regulations deals with aviation accidents and incidents and provides at Regulation 12.04.06 that: 

“(1) The following records shall not be made available for purposes other than accident or incident investigations, unless a court of law determines that their disclosure outweighs the adverse domestic and international impact such action may have on that or future investigations, taking into account all applicable law –

  1. all statements taken from persons by the investigator/s of the investigation team in the course of the investigation; 
  2. all records of communications between persons having been involved in the operation of the aircraft; 
  3. medical and private information regarding persons involved in the accident or incident; 
  4. cockpit voice recordings and transcripts from such recordings; 
  5. recordings and transcriptions of recordings from air traffic control units; and 
  6. opinions expressed in the analysis of information, including information obtained from flight recorders.

(2) These records shall be included in the final report or its appendices only when pertinent to the analysis of the accident or incident. 

(3) Parts of the record not relevant to the analysis shall not be disclosed.”

Recently, the disclosure of the CVR and FDR was granted in an application to the High Court of South Africa, Gauteng Provincial Division, Pretoria. 

The application was brought by a party (in current arbitration proceedings), in order to compel the South African Civil Aviation Authority (SACAA) to discover, inter alia, the CVR audio tapes and transcripts as well as the FDR information.  The grounds for the relief sought were by reason of the CVR and FDR's relevance to the arbitration proceedings and as well as to conduct its defence in those proceedings. Similarly, the airline carrier had a number of procedures and policies in place that set out the manner in which pilots and engineers in their employ should pilot and maintain aircraft. 

The SACAA relied on numerous defences, one being Part 12 of the Regulations already cited. 

The argument in support of the application was premised on the arbitration agreement between the parties, to the extent that disclosure would be restricted to the private arbitration and the confidentiality thereof would survive the conclusion of the arbitration and any appeal.  The court granted the use of the recordings subject to the abovementioned conditions.

Similarly, the American Federal Aviation Administration (FAA) Regulation provides at Regulation 8401 that the FAA's only purpose in requiring the recorded information is to assist in determining the cause of accidents or occurrences, and that the information is only to be used in connection with the investigation of accidents and occurrences and not in a civil penalty or certificate action.

However, these regulations too, did not prevent a Texas state court from ordering discovery of a CVR. Sadly though, leaks of transcripts or copies of tapes fell into the hands of the local news network and were later aired on television.

In New Zealand, after a successful police warrant to seize the CVR from an accident, the government enacted new law reflecting the International Civil Aviation Organization (ICAO) policy by protecting products of flight recorders and the privity of accident investigations. The legislation expressly prohibits the use of recordings in legal or administrative proceedings and prevents their use in the media.

One may ask – why should one need the pilots’ consent concerning their professional activities, particularly when there has been an accident? While the use of CVRs serves a vital function for accident prevention and investigation, it conversely can constitute an invasion into their privacy in the workplace. After CVRs and FDRs were introduced, pilots acknowledged the benefits that these devices could have, provided they were used for the purpose for which they were developed. The Air Line Pilots Association (ALPA), of which South Africa is a member, continues to reaffirm that the use of these devices is for no purpose other than accident investigation. 

Has it now reached a point where the consent of the pilot and the regulations and legislation worldwide surrounding the use of these recordings has become futile? Potentially, will the pilot's last words, or acts of distress be shared in the court room or television for the public, friends and family to hear? If the use of the recordings continues to be for purposes other than accident investigation, pilots may very well remain silent during flights, which will be of no assistance to either profession.

The FAA, in light of the September 11 disaster, has proposed that video cameras be installed in the cockpit. It is said this will assist pilots in monitoring what is happening behind the cockpit door but equally, it could prove to be damaging to the profession and pilots’ reputations. 

Does the SACAA need to reconsider it legislation and regulations with regard to non-disclosure of, inter alia, CVRs and FDRs? What is said in the cockpit and what has been done in terms of flying technique is ascertainable from transcripts and other data. Whether the audio of CVRs is justifiable in the legal discovery process, for now, continues to cause upsets within both the legal and pilot professions. 

However, until such time as the relevant authorities completely prohibit the use of CVRs and FDRs, it appears that the legal profession will persist in its pursuit of the use and access to such information.