1. The
crash of a helicopter at Cornakelly, Co. Longford on the 27th August, 1999 has
given rise to this application. The Applicant is the widow of the pilot of the
aircraft who, together with his passenger, was killed in the crash.
2. An
investigation has been carried out into the incident by the Second and Third
Named Respondents. The investigation has been carried out pursuant to the
provisions of the Air Navigation (Notification and Investigation of Accidents
and Incidents) Regulations SI. 205/1997 (the Regulations). These regulations
have been promulgated pursuant to the provisions of Council Directive
194/56/EEC. The Regulations set forth the principles which govern the
investigation of civil aviation accidents and incidents.
3. On
the 15th May, 2000 a draft final report of the investigation was furnished to
the Applicant. That was done pursuant to the provisions of Section 1 8(l)(a) of
the Regulations. That section provides that where an investigator is of opinion
that a person is likely to be adversely reflected on by the report he may serve
what is called a Notice of Findings upon such a party. The person so served is
entitled to make comments in respect of the draft report and the inspector is
obliged to consider those comments before proceeding to the delivery of the
final report.
4. The
Applicant, having been so served, desires to make comments to the inspector. It
is in that context that this application is made. She seeks an order directing
the Respondents to make available to her “all records, notes and
memoranda concerning or pertaining to the investigation”. She does so in
purported reliance upon the provisions of Section 24 of the Regulations.
5. At
the hearing the Applicant’s Counsel confined the application to documents
which fall within the express terms of Section 24 of the Regulations which I
will consider in due course.
6. The
basis for the application is an assertion on the part of the Applicant that the
advisor whom she has retained to assist her in making comments requires access
to these documents in order to “comprehensively comment on the draft
final report”.
7. The
Regulations seek to implement the obligations of the State pursuant to the
provisions of Council Directive 94/56/BC. Article 1 of that directive recites
that its purpose is “to improve air safety by facilitating the
expeditious holding of investigations, the sole object of which is the
prevention of future accidents and incidents”. That objective of the
directive is reproduced verbatim as the objective of the Regulations (see
Section 4 thereof).
8. That
air safety and the prevention of accidents is the objective of an investigation
carried out under the Regulations is underscored by a number of specific
provisions contained therein. For example, under Section 14 the report prepared
on foot of an investigation into an accident must state that the sole objective
of the investigation is that which is referred to in Section 4 of the
Regulations and must contain, where appropriate, safety recommendations.
Section 10 (4) of the Regulations provides that investigations carried out
under them “shall in no case be concerned with apportioning blame or
liability”.
9. Section
17 (1) of the Regulations provides that a safety recommendation “shall in
no case create a presumption of blame or liability for an occurrence
10. It
is clear from these provisions that the purpose of an investigation carried out
pursuant to the Regulations is directed not towards the apportionment of blame
or liability but rather the improvement of air safety and the prevention of
accidents in the future.
11. Part
2 of the Regulations sets out in considerable detail both the powers of
inspectors and the procedures which they must follow in conducting their
investigations. This part of the Regulations also deals with the report which
must be prepared after such an investigation together with the recommendations
to be made on foot of it. It is clear that this part of the Regulations also
seeks to address in a real and substantive way the rights and entitlements of
12. Part
3 of the Regulations provides a procedure whereby the Final Report which
emanates on foot of an investigation can be the subject of re-examination. This
part also makes provision for the holding of a public enquiry if it appears to
the Minister expedient to hold one. In such event the procedures to be followed
at such a public enquiry are set out in detail in the Second Schedule to the
Regulations. This part also contains provisions for the rehearing of a public
enquiry.
13. The
section which is relied upon by the Applicant in these proceedings is contained
in the miscellaneous part of the Regulations and I will consider that section
later in this judgment.
14. This
section provides that no report of an investigation into an accident or
incident may be made to the Minister or made public until the investigator in
charge has:
15. “where
it appears to him or her practical to do so, served a notice (in this
regulation referred to as “the Notice of Findings”) on any party
involved in the occurrence and on any other person, including the Minister, who
is, in the Inspector’s opinion, likely to be adversely reflected on by
the report or, where such a person is deceased, on the person who appears to
the investigator to best represent the interests of the deceased person
16. Sub-section
2 of Section 18 provides that the Notice of Findings shall include particulars
of any proposed analysis of facts and conclusions as to the circumstances and
causes of the accident or incident which may concern the person on whom it is
served.
17. Once
served on the relevant person they are entitled to make comments to the
inspector and he is obliged to consider those comments. Having done so the
inspector is then obliged under sub-section 1(c) of Section 1 8 to inform in
writing the person who made the comments of the result of the inspector’s
consideration of the comments.
18. Section
1 8 (3) makes it clear that any comments which may be forthcoming from a person
served with a Notice of Findings must be made in writing and be served within a
period of 28 days from the service of the Notice of Findings. Following
consideration of such comments the inspector is of course entitled to amend the
report or to append the comments made to him to the report.
19. The
Applicant was served with the draft report pursuant to the provisions of
Section 18 and wishes to exercise her right to make comments in that regard.
22. The
Applicant contends that, pursuant to the Section, she has an entitlement to the
documents which she seeks. Alternatively she says that fair procedures require
that she be furnished with these documents for the purposes of preparing her
comments.
23. In
my view this question must be answered in the negative. The Section provides
that the authorities shall not make the relevant records available unless the
Court is of the view that the benefits resulting from disclosure outweigh the
adverse domestic and international impact that disclosure may have on the
instant or any future investigation. The negative way in which the wording is
framed suggests to me that no right to these documents is created or
established by Section 24. What it does is establish criteria which must be
applied by the Court in circumstances where an Applicant is able to demonstrate
a right to such information and seeks to exercise that right.
24. I
come to this conclusion not merely by reference to the negative way in which
Section 24 is itself framed. When the section is read in conjunction with the
rest of the statutory instrument it seems to me that the Regulations as a whole
do not envisage a situation where a person who wishes to make comment to an
investigator has a right of access to information gathered by the investigator.
If such an entitlement existed it would be inconsistent with a period of 28
days specified for the making of such comments by Section 18 (3). Such a right
would also not sit comfortably with the object of the Regulations which is not
to apportion blame for accidents or incidents but to ensure that similar
accidents do not occur in the future. In order to achieve that, there is the
very limited time within which the Regulations require the investigation to be
conducted. That time scale would be difficult if not impossible to achieve if a
right of the type contended for arose under Section 24 necessitating in each
case an application to the Court for an order so as to have the documents
disclosed.
25. In
these circumstances I am of the view that the first part of the
Applicant’s case fails in that a right to these documents is not created
by the provisions of Section 24 of the Regulations.
26. If
I am correct in the view which I have taken, then one does not even begin to
conduct the balancing test which is required under Section 24 unless a right to
the documents is established. It is necessary to ascertain whether such a right
subsists in the Applicant.
27. That
decision seems to me to support the proposition that there is no right to these
documents which exists per se.
28. Neither
is there any general entitlement to discovery of documents in the possession of
the State or other bodies. That is so having regard to the decision of the
Supreme Court in
Doyle
-v- The Commissioner of An Garda Siochana
(1999) 1 IR 249 where Barrington J. at 263 said:
29. Clearly
there is no entitlement of the type suggested in that passage which exists in
the present case.
30. Having
therefore found that there is no right to the documents given to the Applicant
under the Regulations, nor does such a right exist per se at common law the
only possible entitlement which she might have would arise by her demonstrating
that either rights of natural justice or constitutional fairness enjoyed by her
would be impaired by the non-production of the report.
31. All
the parties to this litigation have a copy of the draft report and a copy was
furnished to me. Having considered it I have come to the conclusion that the
Applicant has not demonstrated that any of her entitlements to either natural
justice or constitutional fairness would be impaired were she not to obtain the
documents which she seeks. I have come to that conclusion for a number of
reasons.
32. First,
as I have already pointed out, the object sought to be achieved by this report
is the improvement of air safety and the prevention of future accidents and
incidents. Not merely do the Regulations require that the investigation and the
report which derives from it is not concerned with apportioning blame or
liability but the draft report does not in fact attempt to do so.
33. In
addition there is no presumption of blame or liability for an occurrence to
derive from any safety recommendation contained in the report. In fact the
report contains three safety recommendations.
34. Neither
in the findings made by the Second and Third Respondents nor in the safety
recommendations contained in the draft report is there anything which in my
view would require the production of the documents which are sought in order to
vindicate the Applicant’s entitlements in natural justice or
constitutional fairness.
35. Furthermore
it is clear from the affidavit sworn by the Applicant’s advisor Mr.
Douglas Herlihy that on the basis of the draft report which has been shown to
him he is already in a position to comment concerning what he alleges are short
comings in the draft report. He is in a position to make those comments without
sight of the documents in question and his comments in that regard will, when
furnished to the Second and Third Respondents, have to be given due
consideration.
36. In
these circumstances I have come to the conclusion that a right or entitlement
to these documents has not been established by the Applicant. It is not
therefore necessary for me to conduct the balancing exercise which is
prescribed under Section 24 of the Regulations with a view to ascertaining
whether the benefits resulting from the disclosure of the records would
outweigh the adverse domestic and international impact which such disclosure
might have on this or a future investigation.