11/15/2011 10:16 am ET Updated Jan 15, 2012

NTSB Takes Colgan Air to the Woodshed

The National Transportation Safety Board sent a letter Nov. 9 to Pinnacle Airlines, parent company of Colgan Air, regarding the recent discovery of emails exchanged in 2008 by Colgan officials expressing doubts about one of its pilots' fitness to begin training on the complex Dash 8 Q400 turboprop. The pilot, Marvin Renslow, who was at the controls when Colgan Air 3407, a Q400, went down Feb. 12, 2009, outside Buffalo, killing 50, was later judged OK to train to fly the Q400.

The NTSB's letter demands that Pinnacle hand over, no later than Nov. 17, "any and all information that was not previously provided to the NTSB" regarding the training and technical qualifications of Renslow and Rebecca Shaw, the first officer, including those emails. The emails were acquired by lawyers representing victims' families.

While the new material does not alter the NTSB's conclusions about the probable cause of the crash (Renslow responded wrongly to a stall warning and lost control of the plane), it does point to a flaw in the agency's approach, grounded as it is in an ethic of cooperation between investigators and the airline and other officially designated parties. To work, this collaborative method requires the parties to be honest, and not hide relevant material. But for the NTSB, as spokeswoman Kelly Nantel said, "The reality is, you don't always know what you don't know."

Just reading through a few of the interview transcripts from the Colgan investigation is enough to realize that the NTSB's investigators constantly bumped up against the airline's willingness to cooperate. The pilots the NTSB interviewed were Colgan employees, after all, and presumably were wary of saying anything that might cause them trouble with their employer.

But in addition to that, Colgan was taking no chances: its lawyer, Dane Jaques, was present at most of the interviews, and did not hesitate to interrupt, not only to ask questions but to take the proceedings off the record. This was startling to read, and it appears the NTSB may have allowed the lawyer to ride roughshod over its procedures; NTSB spokesman Keith Holloway said that although interviewees are permitted to have a representative present, that person is not allowed to ask questions or alter the course of the interview, which Jaques clearly did every time he said "Let's go off the record."

A group of New York legislators, concerned about the emergence of the Colgan emails, has written to NTSB Chairman Deborah Hersman asking for an explanation of how the NTSB's party system of accident investigation works. They might have checked the NTSB website.

The NTSB has statutory authority to issue subpoenas, but Holloway could not give me one example of investigators using a subpoena to pry information out of a reluctant airline or aircraft manufacturer. Most often, he said, the NTSB issues so-called "friendly subpoenas" to allow an airline, say, to release information about the crew that otherwise would be confidential.

The NTSB's reputation as a federal agency free from outside influence is second-to-none. Recently at an appearance in New York City, Senator Chuck Schumer introduced Hersman by saying, "The NTSB is one of those few agencies that politics hasn't infected in Washington. They are on the merits, they are focused on safety... " But that doesn't mean its investigations don't meet with resistance from those directly affected, who possess the knowledge the investigators need to ensure that their findings are correct and complete.