The FAA has placed new restrictions this week on what public documents can be accessed, generating a ripple of concern in the business aviation world for those researching aircraft ownership and history when completing sales transactions. The move comes during the end-of-year crunch to close on deals before the calendar changes, potentially compounding fears in the industry.
The agency issued a statement Friday morning to GlobalAir.com that said: “Out of an abundance of caution, the FAA secured access to portions of the aircraft registry while it reviews system protections for proprietary data and personally identifiable information.”
An FAA staff member sent an email on Monday to permit holders of its public documents room saying immediately and until further notice, the agency is restricting access to ancillary documents to only federal employees and federal contractors. The email states that the FAA is making the move on the advice of its legal team because it’s it could inadvertently release proprietary data or personal information.
The email cites the 1905 Trade Secrets Act and the U.S. Privacy Act and states that the agency is looking into alternate means of providing needed information.
That email was followed by an official FAA letter dated Thursday obtained by GlobalAir.com. It states that the FAA has received “several notifications that document images of ancillary files … may contain sensitive personally identifiable information or information that may be proprietary to certain companies.”
It states that permit holders can review the inquiry screen and “other applicable screens” for ancillary files but that they will no longer be able to download or review document images. Permit holders can make requests to review images as needed but are to explain what information they are seeking.
The FAA also wants written consent from the owner of the record to be included. Requests submitted without content “will require the FAA to conduct a thorough review to ensure that any sensitive information the aircraft registrant may have inadvertently submitted to the FAA is redacted.”
Aviation attorney Jack Gilchrist, of Gilchrist Aviation Law, penned a response to Kevin West, manager of the FAA Aircraft Registration Branch, questioning whether “several notifications” that the issue of documents that possibly containing sensitive personal info was enough for the agency to make such a broad move.
“Based on my experience … the possibilities to which you refer most likely are not real problems, and, if they are, they were submitted to the FAA public records voluntarily and with knowledge that they get published,” Gilchrist wrote. “As a result, they gave their consent when the documents were filed with the FAA. Furthermore, the possibility of these records are .0001 percent of the documents, if that much.
Gilchrist contended that such a small volume of cases could be handled by the FAA legal team, as any confidential documents in the files would have been submitted with the understanding that the records would be public and in those cases, the sensitive information could be redacted with the rest of the files being placed into public records. Gilchrist maintains that the new process will be overly cumbersome.
“Your proposed solution now will result in all of the public submitting requests for the FAA personnel to deliver the documents to the (public documents room),” he wrote. “ This will require a piece-by-piece review by the FAA staff, already overworked. …What you have offered, while an olive branch, is not a realistic solution.”
In an interview with GlobalAir.com, Gilchrist said nobody in the industry knows what gave rise to the FAA’s concern, but the move creates a “significant hurdle,” especially when it comes to aircraft transactions for trusts and LLCs. That this comes in mid-December in a market where speed is key in closing deals on the sale of an aircraft certainly does not help.
“The timing could never be worse,” Gilchrist said. “I remain hopeful that they are actually diligently pursuing a solution to the problem.”
Ultimately, Gilchrist said that any risk that arises from not being able to access the FAA public documents will fall on sellers, buyers and those financing an aircraft.
“We’re (title companies) faithful to the industry, I would say, and we’re going to do what we can to push to close … and keep the industry moving,” he said.
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