February 1, 2006
By John S. Yodice
John S. Yodice is the legal counsel for the Aircraft Owners and Pilots Association.
Expunction is a high-sounding word that means no more than "to erase, to rub out." More than a decade ago I reported to you that the FAA adopted an "expunction" policy erasing its records of many old violation histories of airmen, particularly pilots (see " Pilot Counsel: The FAA Expunction Program," March 1993 Pilot). Under that program the FAA purged (and is purging) its records, older than five years, that show a pilot's certificate was suspended, or a pilot paid a civil penalty fine for an infraction of the federal aviation regulations. Pilot certificate revocations are never expunged. Warning notices and letters of correction are expunged after two years.
The FAA has now announced a similar expunction program related to its accident and incident records. The FAA maintains a rather extensive computer-based electronic system of records of aircraft accidents and incidents (commonly known as AIDS, the Accident and Incident Data System). These are public records available to anyone on request and, as such, they have many times been problematic to the pilots involved. That's because, in addition to the date and place of an event and a description of what happened, the records contain the identity of the airman involved, including his or her name, date of birth, and airman certificate number. Old records that may no longer be relevant are perceived to be a black mark on the pilot's record.
Here is how the records are compiled. Initially they are in written form and include all accidents investigated by the FAA, and all incidents reported to or investigated by the FAA. Eventually the written form is routinely destroyed. But not before certain essential information is extracted from these written records and put into a computerized form to be maintained in the AIDS. The extracted information included in the AIDS is the identity of the airmen involved.
The problem has been that the FAA maintains this computerized information, including the airman's identity, indefinitely. The purpose of the system is for safety-related statistical research. But it has been used for other purposes. For example, an FAA inspector investigating an accident or incident will look at an airman's FAA history — arguably a proper purpose if the prior accident or incident is recent. So, too, these records have been accessed by members of the public to learn the accident and incident history of a particular airman, as, for example, in considering pilot applicants for employment. Again, arguably a proper purpose if the history is relatively recent and relevant.
To its credit, the FAA recognizes that old and stale records, publicly available, could be unfairly used against an airman. The FAA believes that after five years, any information about an individual's identity will be of little, if any, real legitimate value. So the FAA has now announced a policy to expunge the identity of airmen involved. It will do so after five years from the date of the accident or incident. This is a welcome policy change.
What is not commonly known is that even before this expunction program, an individual airman could have his or her identity expunged from an accident or incident record after a period of five years — just by asking. The FAA has been removing data on individuals from the AIDS records on an ad hoc basis since 1996. All that is needed is a request to do so, citing the Federal Privacy Act. This, too, seemed unfair to the FAA because there are many airmen who do not know that this mechanism exists. This was another reason that prompted the FAA to make the policy change.
The policy became effective November 22, 2005. There are a large number of records to be expunged, so the expunction will be completed in stages. The task is daunting. Even with the policy in place, it may be impossible to assure that the expunction of any particular record will be made in strict accordance with the policy. Therefore, the policy continues the ad hoc expunction. If an individual becomes aware of AIDS data eligible for expunction that have not been expunged, he or she may remedy the situation by making a written request for an "amendment of the record" under the Federal Privacy Act.
There are some exceptions to the policy. If at the time an AIDS record is to be expunged a subsequent AIDS record has been opened, the first record will not be expunged unless and until the subsequent record is eligible for expunction. Also excepted from the policy are organizational entities such as airlines, commercial operators, repair stations, and the like, even if owned or operated by an individual.
The policy does not apply to the electronic records of the National Transportation Safety Board, which also maintains an extensive record of accidents and incidents available to the public. In our experience, typically these have not been accessed for information on individuals.
Thanks should be given to the FAA for this welcome policy change.
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