Will the NTSB Release Cockpit Voice Recordings?

 by Dave Alden

July 8, 2013 – Legal.com

NTSB briefing reporters after Asiana 214 crash

Following the crash of Asiana flight 214 while landing on runway 28L at San Francisco (KSFO) on July 6, 2013, the U.S. National Transportation Safety Board (NTSB) conducted a series of briefings. Responding to questions from reporters about the availability of the cockpit voice recording from the flight, NTSB Chairman Hersman, citing statutory limitations, responded that the CVR tape would not be released to the public. The statute Chairman Hersman is referring to is 49 USC § 1114, which provides:

“(c)Cockpit Recordings and Transcripts.—

“(1) The Board may not disclose publicly any part of a cockpit voice or video recorder recording or transcript of oral communications by and between flight crew members and ground stations related to an accident or incident investigated by the Board. However, the Board shall make public any part of a transcript or any written depiction of visual information the Board decides is relevant to the accident or incident—

“(A) if the Board holds a public hearing on the accident or incident, at the time of the hearing; or
“(B) if the Board does not hold a public hearing, at the time a majority of the other factual reports on the accident or incident are placed in the public docket.
“(2) This subsection does not prevent the Board from referring at any time to cockpit voice or video recorder information in making safety recommendations.”

A review of the NTSB Web site reveals policy that CVR recordings are exempt from disclosure under Freedom of Information Act (FOIA) requests. The section reads:

“Cockpit Voice Recorder (CVR) tapes. Title 49 U.S.C. § 1114(c) prohibits the release of any CVR tape. However, the NTSB may release a CVR transcript (edited or unedited), in accordance with 49 U.S.C. § 1114(c)(1).”

It should be noted that, per the statute, portions of the written transcript from the cockpit voice recorder can be made available to the public when the NTSB holds a public hearing related to the accident, places factual reports on the public docket or makes safety recommendations.

Chairman Hersman distinguished CVR tapes from air traffic control (ATC) recordings. ATC communications are radio transmissions over public airwaves. They are recorded by the Federal Aviation Administration and are not subject to the statutory restriction pertaining to CVR recordings. The latter communications are intra-aircraft, between cockpit crew members.

Expressing concern, the Air Line Pilots Association stated, “The amount of data released publicly during the field portion of the accident investigation is unprecedented,” in a release dated July 8, 2013. “The release of individual data points from the flight data recorder and the cockpit voice recorder—without the context of the entire body of factual investigative data—represents a potential detriment to flight safety. It encourages wild speculation, as we have already seen in the media, about causes of the accident before all the facts are known, before investigators have the ability to determine why the events occurred, and in this case before the flight crew had even been interviewed”.

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