How Privileged Safety Information Safeguards Mission Readiness

When a mishap occurs in the Department of the Air Force, operations may be impacted until the cause of the mishap can be identified and a plan implemented to prevent recurrence.  Due to potential direct and immediate impacts on mission readiness and combat capability, the Department quickly convenes a Safety Investigation Board to find the root causes and identify steps to prevent further mishaps. Privileged Safety Information is a key part of that mishap investigation process.

According to Department of Defense Instruction 6055.07, a mishap is “an unplanned event or series of events that results in damage to DoD property; occupational illness to DoD personnel; injury to on or off-duty DoD military personnel; injury to on-duty DoD civilian personnel; or damage to public or private property, or injury or illness to non-DoD personnel caused by DoD activities.” In an effort to rapidly get to the root cause of a mishap, the Air Force SIB uses safety privilege to encourage complete candor by investigators and promote completely honest and open communication with witnesses and technical analysts. PSI is “information reflective of a deliberative process in the safety investigation or given to a safety investigator pursuant to a promise of confidentiality, which the safety privilege protects from being released outside safety channels or from being used for any purpose except mishap prevention.” All mishap investigation reports are protected by safety privilege and are exempt from disclosure outside the DoD safety community.

Safety privilege ensures that a SIB’s analyses, conclusions and recommendations are shared only on a need-to-know basis, for DoD mishap prevention. They cannot be used for public release, disciplinary action, or any other non-mishap prevention purpose. In some cases, investigators may offer a promise of confidentiality to witnesses to help give safety investigators a rapid and unimpeded path to the truth.

“Privileged Safety Information is a valuable tool in the Safety community and is critical to mishap prevention and combat readiness,” said Maj. Gen. Sean Choquette, Department of the Air Force chief of safety and commander of the Air Force Safety Center. “It gives Airmen and Guardians confidence in the safety investigation process and recommendations because it protects open discussion and deliberation.”  

However, not all mishap information is privileged. An Accident Investigation Board may run in concert with a Safety Investigation and the findings of that board are released to the public and can be used for any authorized purpose.

The safety privilege has a long legal history dating back to the 1963 Machin v. Zuckert federal court decision upholding its limited-use nature.  

“The court held that when disclosure of investigative reports obtained in large part through promises of confidentiality would hamper the efficient operation of an important Government program and perhaps even impairs the national security by weakening a branch of the military, the reports should be considered privileged,” said Daniel Vadnais, AFSEC senior attorney advisor.

The safety privilege works on two levels:  First, it prevents privileged safety information from being discoverable or admissible in judicial proceedings or being made available to anyone outside of the Department’s safety and mishap prevention communities.  In exchange for that protection, the Department may not, and does not, allow that information to be used for any other purpose, including disciplinary action or public disclosure, even when that disclosure could benefit the Department.

Second, the promise that information from a safety investigation will only be used for military mishap prevention fosters the trust and confidence of military personnel in the “safe harbor” of the safety investigation. That trust in turn fosters the candor and cooperation of witnesses, technical representatives, and investigation board members. This results in highly refined analyses and recommendations and has driven overall aviation mishap rates in the Department to historic lows. Without the confidence in this very restricted access and use, a safety investigation would become just another legal investigation, and participants’ candor would depend on their own calculation of personal risk. The result would risk an immediate adverse impact on mission readiness and combat capability.

“Military safety privilege is judicially recognized and protects the investigative process and promises of confidentiality,” said Lt. Col. James Eves, AFSEC staff judge advocate. “Mishap investigations are highly effective in reducing the number and severity of mishaps and have a direct correlation to reduced injury, death, damage, and combat capability. Because of its sensitive nature, the DAF treats this information as limited use and limited access.”

Maj Gen Choquette emphasized how crucial safety privilege is to the SIB process.  

“Safety privilege is critical for rapid and accurate cause assessment to prevent a recurrence and maintain mission readiness while keeping that information out of adversaries’ hands,” said Choquette. “When confidential witnesses and investigators doubt that SIBs are being used only for those purposes, they are likely to stop providing complete and candid statements, and investigators are likely unable to provide necessarily hard-hitting recommendations. In short, without privilege, the whole process fails to fully protect our Airmen and Guardians and ensure readiness.”

For more information regarding the steps and aspects of the Mishap Investigation Process, visit https://www.safety.af.mil/Home/Mishap-Investigation-Process/.