### BEFORE THE DEPARTMENT OF TRANSPORTATION WASHINGTON, D.C.
,.J 

### Application of ) ) ) 

### AIR CALEDONIE INTERNATIONAL S.A.



# ~ DocketNo. OST-2015- {) 

# Q03 ) 

### for a foreign air carrierpermitpursuantto 49 U.S.C. 

### § 41301 and for an ) 

### exemption pursuantto 49 U.S.C. 

### § 40109 )



### DATED: MOTION OFAIR CALEDONIE INTERNATIONAL S.A. FORCONFIDENTIAL TREATMENT UNDER 14 C.F.R. § 

### 302.12

January 8, 2015 Communications with respect to the above should be addressed to: Evelyn D. Sahr Jonathan T. Linde Drew M. Derco Air Caledonie International S.A. ECKERT SEAMANS CHERIN & 

### MELLOTT, LLC 1717 Pennsylvania Ave., N.W. Twelfth Floor Washington, D.C. 20006 Tel: (202) 659-6600 Fax: (202) 659-6699BEFORE THE DEPARTMENT OF TRANSPORTATION WASHINGTON, D.C.
Application of AIR CALEDONIE INTERNATIONAL S.A. for a foreign air carrier permit pursuant to 49 U.S.C. § 41301 and for an exemption pursuantto 49 U.S.C. § 40109 ) ) ) ) ) DocketNo. OST-2015- ) ) )

MOTION OFAIR CALEDONIE INTERNATIONAL 

### S.A. FOR CONFIDENTIAL TREATMENT UNDER 14 C.F.R. § 302.12 

### Air Caledonie International S.A. (Aircalin), pursuantto Rule 12 oftheDepartment'sRules ofPractice, 14 C.F.R. §

### 302.12,herebymovesthattheDepartmentwithholdfrompublicdisclosure certain proprietary and commercially sensitive confidential information Aircalin is submitting under seal in connection with the above captioned proceeding. Specifically, the confidential documents subjectto this motion are being submitted inconnection withAircalin's applicationfor exemption authority and a foreign air carrier permit to provide codeshare only service between New Caledoniaand the United States. The confidential documents are identified and described in the attached index. Aircalin respectfully requests that access to these documents be limited to counsel and outside experts for interested parties. In support ofthis motion, Aircalin states as follows: I. THE CONFIDENTIAL INFORMATION IS PROTECTED FROM PUBLIC DISCLOSURE UNDER THE FREEDOM OF INFORMATIONACT 

### The confidential information being submitted by Aircalin is protected from public disclosure under various exemptions in the Freedom ofInformation Act, including 5 U.S.C. §
2552(b)(3) and 5 U.S.C. 

### §552(b)( 4). Exemption (4) exempts from public disclosure "trade secrets and commercial or financial information obtained from a person and privileged or confidential." 5 U.S.C. § 552(b)(4). This exemption has been construed to prevent public disclosure of information that is not the type usually releasedto thepublic, andthatifreleased would cause substantial harm to the competitive position of the person from whom the information was obtained. See

**~** Gulf & Western Industries, Inc. v. United States, 615 F.2d 527, 530 (D.C. Cir. 1980); American Airlines, Inc. v. NMB, 588 F.2d 863, 871 (2d Cir. 1978); National Parks & Conservation Ass'n v. Kieppe, 547 F.2d 673, 684 (D.C. Cir. 1976) JointApplication ofDeltaand VirginAtlantic, Order 94-5-42, May 28 1994; Joint Application ofUnited and Lufthansa, Order 93-12-32, December 18, 1993; Joint ApplicationofNorthwestand KLM, Order93-1-11,January 8, 1993,p. 19; InformationDirectives Concerning CRS, Order 88-5-46, May22, 1988; Carrier-Owned ComputerReservations Systems, ER-1385, Order 86-5-54, May 19, 1986; Information Directives Concerning CRS, Order 83-12- 136, December 29, 1983. The purpose ofthese exemptions "is to protect the confidentiality of information which citizens provide to their government, but which would customarily not be released to the public, and to facilitate citizens' ability to confide in their government." Burke Energy Corp. v. DOE, 583 F. Supp. 507, 510 (D. Kan. 1984). For information to qualify for exemption (4), the information must be (1) commercial or financial in nature, (2) obtained from a person, and (3) privileged or confidential. See Public Citizen Health Research Group v. FDA, 704 F.2d 1280, 1290 (D.C. Cir. 1983). All of the confidential informationbeing submitted by Aircalin satisfies this three-parttest. First, the confidential information is commercial or financial in nature in that it relates to commercially sensitive, proprietary, andprivileged financial and corporate information. This type 3

### ofconfidential information is proprietary and commercially sensitive, and would not otherwise be made public. It 

### is being submitted to the Department so that the Department can expeditiously evaluate whetherAircalin is financially qualified to providethe services at issue in its application. Second, the information has been "obtained from a person" within the meaning of exemption (4). Third, the information is "confidential." This confidential information is not available to the public, and its public disclosure is not required to further the public interest or to promote competition. In National Parks & 

### Conservation Ass'n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974), the Court held that information is "confidential" for purposes ofexemption (4) ifit would not customarily be released to the public by the person from whom it was obtained, and if disclosure is likely to have either ofthe following results: "(1) 

### to impairthe Government's ability to obtain necessary information in the future; or (2) to cause substantial harm to the competitive position ofthe person from whom the information was obtained." Aircalin submits thatpublic disclosure ofthe type ofconfidential information atissuehere would cause substantial harm to its competitive position, and could impair the Government's ability to obtain similar information on a voluntary basis from individuals in the future. 

### II. ACCESS TO THESE HIGHLY SENSITIVE DOCUMENTS SHOULD BE LIMITED TO COUNSEL AND OUTSIDE EXPERTS Aircalinis submittinghighly sensitiveinternal corporate documents and datawhich should be accorded limited access. Such access should be granted only to counsel and outside experts who file Rule 12 affidavits statingthatthe affiant will (1) use the information only for the purpose ofparticipating in this proceeding, and (2) not disclose such information to anyone other than counsel or outside experts who have filed a valid affidavit.

4The subject materials contain highly sensitive commercial information relating to Aircalin's financial performance. The information contained in these documents has not been publicly released. Ifreleased, competitors would gain valuable insights into Aircalin's financial performance and other competitively sensitive matters. In order to minimize the risk of harmful disclosure of this competitively sensitive information, access should be strictly limited, as requested. Aircalin is filing, concurrently with this motion, copies of this information, in sealed envelopes labeled "Confidential Treatment Requested Under 14 CFR 302.12; Access Is Limited To Counsel Or Outside Experts Who Have Filed Valid Affidavits." The request to limit disclosure to counsel and outside experts is fully consistent with Department precedent and policy. Thus, in United/Lufthansa, Order 93-12-32, supra, the Department granted the applicants' request to limit access to certain confidential information to counsel and outside experts who filed Rule 39 (nowRule 12) affidavits. In so limiting such access, the Department balanced the disclosure ofthe confidential information against the competitive harm to the applicants that would result ifaccess were expanded, and concluded that "the undue competitive harm to the applicants outweighs the commenters' need for expanded access to the highly sensitive material inthis case" (p. 5). The Department also notedthat "interestedparties to thisproceeding can obtainadequate advice onthemerits ofthe applicationthrough outside experts andpersons authorizedto reviewthe materials" (Id.). See

**also,~**JointApplicationofAmerican and Canadian International, Order 96-1-6, January 11, 1996, p. 3. Access to Aircalin's internal documents and data should be limited in a comparable manner, inlight ofthe undue competitiveharmthatwouldresult from abroader disclosure ofsuch highly sensitive information.
5CONCLUSION The Department should grant this motion to withhold proprietary and commercially sensitive confidential information from public disclosure, as Aircalin has requested herein.

Dated: January 8, 2015 Respectfully submitted,



# ~~l3&£ Evelyn D. ahr Jonathan T. Linde DrewM. Derco Eckert Seamans Cherin & Mellott, LLC 1717 PennsylvaniaAvenue, NW 12th Floor Washington, D.C. 20006 Tel: (202) 659-6615 Fax: (202) 659-6699 Counsel for Air Caledonie International S.A.

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INDEX OF DOCUMENTS SUBJECT TO MOTION FORCONFIDENTIAL TREATMENT
Exhibit 6
.................................................................................Financial Statements

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