Background to the complaint

1. The complainant previously worked as a Fire Safety Expert for an aircraft manufacturer. In that context, he was designated as a “focal point” for the fire safety of a type of aircraft engine produced by that company. He claimed that, while working for that company, he came across information that several fire tests had been cancelled and indicating the centre engine was not fireproof. The European Aviation Safety Agency (EASA) certified the airplane as fireproof in 2007. According to the complainant, this certification was based on false information in a report presented to the EASA by the aircraft manufacturer.

2. The complainant raised his concerns with the EASA on several occasions. In 2007 and 2008, the complainant requested from the EASA access to the report presented to the EASA by the aircraft manufacturer, but was denied both times.

3. Nearly 10 years later, on 6 March 2017, the complainant again sought access to the report under Regulation 1049/2001[1]. After consulting with the aircraft manufacturer, the EASA refused access on the basis that its disclosure would undermine the aircraft manufacturer’s commercial interests[2].

4. On 22 April 2017, the complainant requested a review of this decision (a so-called confirmatory application). On 6 June 2017, the EASA then partially disclosed the relevant report and additionally provided the complainant with partial access to notes on the report (subsequently referred to by the complainant as “annexes”), redacting the information that it now considered would undermine the aircraft manufacturer’s commercial interests.

5.  Not satisfied with this outcome, the complainant turned to the European Ombudsman on 27 February 2018, seeking full access to the report and the notes.

The inquiry

6. The Ombudsman opened an inquiry into the EASA’s decision to grant only partial access to the relevant report and the notes.

7. In the course of the inquiry, the Ombudsman’s inquiry team considered all the documentation provided by the complainant, which included communications between the parties.  The inquiry team also inspected the EASA’s file.

Arguments presented to the Ombudsman

8. The complainant argued that the disclosure of the report is of significant public interest since the possible failure of the aircraft’s engine would prevent the aircraft from flying safely. The complainant states that the EASA had wrongfully certified the airplane. He stated that the EASA’s Project Certification Manager had been in a conflict of interest situation during the certification process. In the complainant’s view, disclosure of the report and the notes would clarify both those issues.

9. The complainant also stated that the report contains no commercial secrets, since the geometry of the components could be easily observed on the aircraft and the means of compliance are published on the EASA’s website, in line with its obligations[3].

10. The EASA justified its decision to provide only partial disclosure by stating that full disclosure of the report and the notes would undermine the commercial interests of the aircraft manufacturer. It said the report contains “detailed principles of design and installation of side and central nacelle components and pylon attachment, engine built up comprising fuel supply lines, bleed air pipes, hydraulic lines, electrical harnesses, thermal anti-ice pipes, fire extinguishing, drainage, air starter systems and other equipment such as DC generator or hydraulic pumps as well.” The documents include drawings with element size and specific aircraft design features that “cannot be determined by the sole examination of an aircraft”. Furthermore, they present the fire strategy in detail, “i.e. the methods used to demonstrate the fireproof fire resistant capability, as appropriate, of the nacelles and thrust reverser components within Fire Zone 1”, as well as the means of compliance. In addition, the Report also includes “PWC Engineering reports n° 6145 "PW 307 IPPS Qualitative Fire Source Analysis Method A" and "ER6608 "EBU Fire Philosophy" (...) disclosure of which may be harmful to PWFC Corp”.  In the EASA’s view, the report is “know-how” of an aircraft manufacturer and granting full public access to the report would allow competitors to receive, free of charge, all the studies and information necessary to design and obtain certification of an airplane.

The Ombudsman's assessment

11. During the inspection of the EASA’s case file, the Ombudsman established that the EASA had, on several occasions, discussed with the aircraft manufacturer the analysis of the flight safety issue raised by the complainant and had obtained from them all flight safety information. The EASA had also conducted a balancing test between the possible public interest in disclosure and the potential prejudice to commercial interests.

12. The Ombudsman notes that the EASA provided significant partial access to the requested report and the notes, redacting only limited information that would constitute commercial secrets, in accordance with article 4(2) of the Regulation 1049/2001. That disclosed information detailed the fire safety issues and the EASA views on those issues. The EASA also provided reasonable justifications, explaining the reason for the redactions, namely that those parts contained aircraft manufacturer expertise, useful in the design and manufacture of competing aircraft, the disclosure of which would undermine the protection of the commercial interests of the aircraft manufacturer. The extent of the disclosure of the report provided by the EASA is such that the public has the necessary access to the substantive analysis of the flight safety information so as to be able to scrutinise the aircraft’s flight safety.

13. The Ombudsman finds that the redactions of commercially sensitive information useful for the design and manufacture of competing aircraft were reasonable and, thus, justified. It would be reasonably foreseeable that, if the redacted information were disclosed, those commercial interests would be prejudiced. In light of the partial disclosure made, there was no overriding interest in full disclosure. The exception was therefore appropriately applied and there was no maladministration.

Conclusion

The Ombudsman closes this case with the following conclusion:

There was no maladministration by the European Aviation Safety Agency. 

The complainant and the European Aviation Safety Agency will be informed of this decision.

 

Emily O'Reilly

European Ombudsman

Strasbourg, 04/06/2018

 

[1] Regulation 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, available at http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32001R1049&rid=1

[2] In accordance with Article 4(2) of the above Regulation.

[3] See Article 3.2 of the European Aviation Safety Agency Decision of the management board amending Decision of the management board no 07-2004 concerning the General Principles related to the certification procedures to be applied by the agency for the issuing of certificates for products, parts and appliances (“products certification procedures”). Available at: https://www.easa.europa.eu/sites/default/files/dfu/MB%20Decision%2012-2007%20amending%20the%20certification%20procedure.pdf