BEFORE THE 

DEPARTMENT OF TRANSPORTATION 

WASHINGTON, D.C. 

,.J 

Application of 

) 

) 

) 

AIR CALEDONIE INTERNATIONAL S.A. 

~ Docket No. OST-2015- {) Q03 

for a foreign air carrier permit pursuant to ) 

49 U.S.C. § 41301 and for an ) 

exemption pursuant to 49 U.S.C. § 40109 ) 

DATED: 

MOTION OF AIR CALEDONIE INTERNATIONAL S.A. 

FOR CONFIDENTIAL 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) 659-6699 
BEFORE 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 pursuant to 49 U.S.C. § 40109 

) 

) 

) 

) 

) Docket No. OST-2015-

) 

) 

) 

MOTION OF AIR CALEDONIE INTERNATIONAL S.A. 

FOR CONFIDENTIAL TREATMENT UNDER 14 C.F.R. § 302.12 

Air Caledonie International S.A. (Aircalin), pursuant to Rule 12 of the Department's Rules 

of Practice, 14 C.F.R. § 302.12, hereby moves that the Department withhold from public disclosure 

certain proprietary and commercially sensitive confidential information Aircalin is submitting 

under seal in connection with the above captioned proceeding. Specifically, the confidential 

documents subject to this motion are being submitted in connection with Aircalin's application for 

exemption authority and a foreign air carrier permit to provide codeshare only service between 

New Caledonia and 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 of this motion, Aircalin states as follows: 

I. THE CONFIDENTIAL INFORMATION IS PROTECTED FROM PUBLIC 

DISCLOSURE UNDER THE FREEDOM OF INFORMATION ACT 

The confidential information being submitted by Aircalin is protected from public 

disclosure under various exemptions in the Freedom of Information Act, including 5 U.S.C. § 

2 
552(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 released to the public, and that if released 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) Joint Application of Delta and Virgin Atlantic, Order 94-5-42, May 

28 1994; Joint Application of United and Lufthansa, Order 93-12-32, December 18, 1993; Joint 

Application ofNorthwest and KLM, Order 93-1-11, January 8, 1993, p. 19; Information Directives 

Concerning CRS, Order 88-5-46, May 22, 1988; Carrier-Owned Computer Reservations Systems, 

ER-1385, Order 86-5-54, May 19, 1986; Information Directives Concerning CRS, Order 83-12-

136, December 29, 1983. The purpose of these 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 information being submitted by Aircalin satisfies this three-part test. 

First, the confidential information is commercial or financial in nature in that it relates to 

commercially sensitive, proprietary, and privileged financial and corporate information. This type 

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of confidential 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 whether Aircalin is financially qualified to provide the 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. 

197 4 ), the Court held that information is "confidential" for purposes of exemption ( 4) if it would 

not customarily be released to the public by the person from whom it was obtained, and if 

disclosure is likely to have either of the following results: "(1) to impair the Government's ability 

to obtain necessary information in the future; or (2) to cause substantial harm to the competitive 

position of the person from whom the information was obtained." 

Aircalin submits that public disclosure of the type of confidential information at issue here 

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 

Aircalin is submitting highly sensitive internal corporate documents and data which should 

be accorded limited access. Such access should be granted only to counsel and outside experts 

who file Rule 12 affidavits stating that the affiant will (1) use the information only for the purpose 

of participating in this proceeding, and (2) not disclose such information to anyone other than 

counsel or outside experts who have filed a valid affidavit. 

4 
The subject materials contain highly sensitive commercial information relating to 

Aircalin's financial performance. The information contained in these documents has not been 

publicly released. If released, 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 (now Rule 12) affidavits. In so limiting such access, 

the Department balanced the disclosure of the confidential information against the competitive 

harm to the applicants that would result if access were expanded, and concluded that "the undue 

competitive harm to the applicants outweighs the commenters' need for expanded access to the 

highly sensitive material in this case" (p. 5). The Department also noted that "interested parties to 

this proceeding can obtain adequate advice on the merits of the application through outside experts 

and persons authorized to review the materials" (Id.). See also,~ Joint Application of American 

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, in light of the undue competitive harm that would result from a broader disclosure of such 

highly sensitive information. 

5 
CONCLUSION 

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, 

Evelyn ~~l3&£ D. ahr 

Jonathan T. Linde 

Drew M. Derco 

Eckert Seamans Cherin & Mellott, LLC 

1717 Pennsylvania A venue, 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 FOR CONFIDENTIAL TREATMENT 

Exhibit 6 ................................................................................. Financial Statements 

7