In The Matter Of: CLELIA AYALA Respondent 

### SERVED: AUGUST 28, 2013 U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC**;,,~;** 

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_ c:**::;c~** ) ) ) ) ) DocketNo. FAA-2012-0910 Case No. 2010S0290061

ORDER DENYING RESPONDENT'S MOTION TO WITHHOLD OR REDACT INFORMATION FROM THE RECORD On June 12, 2013, an Order Setting Motion Deadlines Regarding Respondent's Motion for Non-Disclosure and Granting/Denying Other Reliefwas filed. On June 13,2013, the FAA filed the Complainant's (Administrator's) Response to Respondent's Oral Motion for Non-Disclosure ofthe Entire Record ("Response"). OnJuly 26, 2013 aNotice ofReturn ofRespondent's Discovery Materials was filed. On June 28, 2013, the Respondent, Ms. Clelia Ayala, e-mailed her Response to Opposition ofComplainant ("Reply") to both the Office ofHearings and the FAA, but she did not serve the Hearing Docket or provide any certificate ofservice. On July 1, 2013, the FAA filed the Complainant's (Administrator's) Motion to Strike to Respondent's 'Response to Opposition ofComplainant' as Untimely. OnJuly 30, 2013 an Order Denying the FAA'sMotion to Strike and Accepting the Respondent's Late-Filed Reply was filed. DISCUSSION 

### I. Respondent's Motion to Withhold or Redact Information OnJune 11, 2013, during a Telephone Motion Conference, the

### prose Respondent, Ms. CleliaAyala, orally moved for non-disclosure ofthe entire record, or inthe alternative, redaction ofcertainpersonal information from the record ("Motion"). This oral Motionwas discussed by the parties, and accepted by this tribunal in lieu ofa written motion. At the conclusion ofthe June 11, 2013 Motion Conference, the parties were provided a briefing schedule to file additional written materials regarding the Motion. This briefing schedule was codified inthe June 12, 2013 Order Setting Motion Deadlines Regarding Respondent's Motion for Non-Disclosure and Granting/Denying Other ReliefInbrief, thepro se Respondent first seeks to withhold1the entire record ofthe proceeding from public disclosure. (6/11/13 Tr. 19; Reply 1.) In the alternative, the Respondent seeks to redact (i.e., remove) all references to her identity from the public record. (6/11113 Tr. 9; Reply 1.) The Respondent offers three primary arguments in support ofher Motionto withhold or redact information pursuant to 14 C.F.R. § 13 .226(b)

- unfairness, personal embarrassment, and the potential negative impacts the record inthis case mighthave in herjob search. (6/11/13 Tr. 7:3-4, 9:9-14.) Essentially, the Respondent argues that itis unfair to disclose the facts ofthis case and/or herpersonal information. In support ofthis assertion, the Respondent states that she has always been a law-abiding citizen and disclosure ofthe record negatively impacts this reputation. The Respondent also notes that she has been cooperative with the FAAin settling the matter, even though she did not agree with all the facts alleged by the FAA. (6/11/13 Tr. 6:19-7:7.) Itwas undisputed that the Respondent voluntarily signed a settlement agreement withthe FAA onMay 22, 2013, by which she waivedher opportunity to challenge the facts at a hearing? The Respondent also argues that disclosure ofher identity inthis case creates personal embarrassment because ofinquiries from family and friends, as well as potential negative questions posedbyfuture employers, and negative reactions from such future employers, as she seeks employment. She does not want family or friends to know about this case (6/11/13 Tr. 6:9-19), nor does she wantto have to explainto potential employers why she was involved in this proceeding (6/11/13 Tr. 7:3-4, 9:9-14). II. The FAA's Response to the Motion Inresponse to the Motion, the FAA objected to withholding the entire record from publication onthe grounds that the Respondent had failed to meetthe criteriarequired for such reliefunder 14 C.F.R. § 13.226(b). (Response 2-3.) The FAA argued that disclosure ofthe complaint, transcripts, orders, and names ofthe parties was in the public interest, since disclosure served as an educational tool and as a deterrent. (!d. at 2.) The FAA did not object, however, to the Respondent's alternative Motion to redactthe Respondent's address, telephone number, and/or e-mail. The FAA asserted that continued publication ofsuch information was an "unwarranted invasion ofpersonal privacy," based on an order issuedby a U.S. Administrative Law Judge inIn re Husky Corp., FAA-2007-0120, Order Sealing Portions ofthe Docket (June 9, 2008). (Response, 2-3.)

1The Respondent has also used the term "expunge" to describe the action. (Reply 1.) Because the Rules ofPractice specifically provide for withholding information from the record, the term "withhold" is used.

2 On June 3, 2013, after signing the settlement but prior to the FAA's filing ofthe same, the Respondent contacted the Office ofHearings requesting non-publication ofher identity in this case. Later that same day the FAA filed the parties' Notice ofSettlement, which the Respondent had signed on May 22,2013. In this Settlement Agreement, the Respondent had agreed to dismiss her appeal with prejudice. The Office ofHearings immediately notified the FAA ofthe Respondent's June 3, 2013 oral request. The parties agreed to address the Respondent's Motion priorto dismissal ofthe proceeding from the Office ofHearings. See, June 6, 2013 Order Converting Third Litigation Scheduling Conference to a Telephone Motion Conference; 6/11113 Tr. 3-6, 12. Page 2 of8

### III. Legal Standard Section 13.210(e)(l) ofthe Rules ofPractice, 14 C.P.R. part 13, subpart G, provides notice to the public that "[u]nlessprotected from public disclosure by an order ofthe ALJ under 13.226, all documents filed in the Hearing Docket are accessible throughthe Federal Docket Management System (FDMS): http://www.regulations.gov." 14 C.P.R. 

### § 13.210(e)(1). Section 13.226(a) ofthe Rules ofPractice, provides: Any person may object to disclosure ofinformation inthe record by filing a written motion to withhold specific information

...The party shall state the specific grounds for non-disclosure in the record. 14 C.P.R. 

### § 13.226(a) (2012). Section 13.226(b) ofthe Rules ofPractice, provides: The administrative lawjudge shall grant the motion to withhold information inthe record if, based on the motion and any response to the motion, the administrative lawjudge determines that disclosure would be detrimental to aviation safety, disclosure would notbe in the public interest, or that the information is not otherwise required to be made available to the public. 14 C.P.R. 

### § 13.226(b) (2012). Pursuant to 14 C.P.R. 

### § 13.224(b), the Respondent, as the moving party, bears the burden ofproof. Thus, inthe Motion herein, the Respondent must demonstrate that information be withheld from public disclosure orredacted on one ofthe following grounds: 1) the information would be detrimental to aviation safety ifdisclosed, or 2) the disclosure ofthe informationwould not be in the public interest, or 3) disclosure ofthe information is not otherwise required to be made available to the public. IV. 

### Analysis A. Motionto Withhold the Entire Record From Public Disclosure In deciding whether to grant the Respondent's motion to withhold the entire record, the information to be withheld mustbe viewed according to each ofthe factors in14 C.P.R. 

### § 13.226(b). 1. Information Detrimental to Aviation Safety Historically, the vast majority ofcases in which litigation information has been ordered withheld, either infull or in part from public disclosure under 14 C.P.R. § 13.226(b), have involved the protection ofaviation safety or security information. See e.g., In re Drex L. Hansen, FAA-2008-1187, Order Dismissing Appeal (Aug. 18, 2010); In re FrostadAtelier, Inc., Page 3 of8FAA-2011-0294, Order ofALJ Sealing Docket (Aug. 10, 2012). However, the Respondenthas not argued that the continuedpublic availability ofthe record in this case would be detrimental to aviation safety. Thus, there are no grounds to withhold information in the record based onthe aviation safety factor identified in 14 C.F.R. § 13.226(b). 2. Disclosure Not in the Public Interest Section 13.226 has also been used to protect sensitive personal medical information, In re StebbinsAviation, Inc., FAA Order 2006-3, Decision and Order at 5 n. 14 (Feb. 7, 2006), and commercial and financial information, In re D & M Custom Injection Molding Corp., FAA2011-0679, Order Sealing Exhibits (Sept. 14, 2012). Inher July 1, 2013 Reply, the Respondent generally referenced the public interest ground by stating, "[i]t is not inthe public interest that this matter be left open for all to see." (Reply 1.) However, theprose Respondent did not further expand onthis argument. Instead, she argued about some ofthe allegations contained inthe Complaint, despite having recently entered into a Settlement Agreement. (Id.) In contrast, the FAA argued that continued disclosure ofthe general contents ofthe record- i.e. the complaint, transcripts, orders, etc.- is withinthe public interest. (Response 2.) The FAA is correct. Public policy favors public access to both court and administrative proceedings. NationalAssociation ofWaterfront Employers v. Chao, 587 F.Supp.2d 90, 99 (D.D.C. 2008). The courts have recognized the public's general right ofaccess, in order to inspect and copy public records and documents, including litigation records. !d. (citing Phoenix Newspapers, Inc. v. US. District Court, 156 F.3d 940,946 (9th Cir. 1998)). Accessto public records also serves as an educational tool both for the general public, as well as for future respondents and their counsel. NationalAssociation ofWaterfrontEmployers, 587 F.Supp.2d at 99. 3 The Respondent failed to meet her burden ofproofto showthat disclosure ofthe record was not in the public interest pursuant to the second factor identified in 14 C.F.R. 

### § 13.226(b). 3. Disclosure Not Otherwise Required The third ground identified in 14 C.F.R. § 13.226(b) allows for withholding information whenever disclosure "is not otherwise required." Thus, this third prong ofSection 13.226(b) may be used to allege a situationthat is not specifically addressed by either the prongs of aviation safety or sensitive personal information. Under this third factor ofSection 13.226(b), the Respondent asserts that withholding information is ajust solution, givenher cooperation in settling the case. The Respondent also

3 "[W]ithout free access to the record, future respondents would find it difficult to prepare a defense, and attorneys wouldnotbe able to adequately advise clients." NationalAssociation ofWaterfront Employers v. Chao, 587 F.Supp.2d 90,99 (D.D.C. 2008) (quoting Graber Mfg. Co. v. Dixon, 223 F.Supp. 1020, 1222 (D.D.C. 1963). Page 4 of 8asserts a personal privacy interest. She wants to maintain her history as a law abiding citizen, and to avoid unwanted contacts or questions about this matter by friends and family members. She seeks to avoid potential criticism about the incident, as well as the possibility ofanswering questions by future employers as she searches for ajob. (6111113 Tr. 6:9-17, 7:3-4, 9:9-14.) As a result, the Respondent argues that the disclosure ofthe record is not necessary inher case, and therefore the entire record should be withheld. While there is no doubt that the Respondent has chosen to settle the case with the FAA, this is a litigation choice. Settling a case does not generate a "reward" ofwithholding the case . record from public review. Ifthat were the case, no litigant would ever know about prior case settlements, orbe able to gauge whether his case facts were ripe for settlement discussions. The Respondent's desire to retain her history as a law-abiding citizen is understandable. We all wishto present our best face to the public. However, having a history ofno prior incidents does not create an automatic presumption in favor ofwithholding information. As noted above, there is a strong public policy presumption in favor ofdisclosure. 

### See generally, US. v. Hubbard, 650 F.2d 293 (D.C.Cir. 1980); 

### NationalAssociation ofWater.front Employers, 587 F.Supp. 2d 90. Public policy favors public access to administrative proceedings. Inthe case herein, the public has already had access to the full record for several months. Althoughthe Respondent objects to continued disclosure ofthe litigationrecord; she has provided no evidence to demonstrate that redacting the entire record is either necessary orthat withholding the entire record is the most narrowly tailored solution to a potential personal privacy interest. Neither has the Respondent shown that any serious injury or danger has occurred or is likely to occur that would override the public policy favoring continuedpublic disclosure ofthe record. Based onthe foregoing, the Respondent's Motion to withhold the entire record from public disclosure is denied. B. Alternate Motion to Withhold the Respondent's Address, Telephone Number, and Email Address from Public Disclosure The Respondent's alternate Motionto withhold from public disclosure her address, telephone number, and e-mail address must also be viewed according to each ofthe factors in 14 C.F.R. § 13.226(b). The Respondent relied onthe same arguments made in her primary Motionto support the reliefshe requested in her alternate Motion. As noted 

### supra, the Respondent did not present proofonthe first ground of 14 C.F.R. § 13.226(b) (aviation safety), and failed to meetherburden ofproofon the second ground of 14 C.F.R. § 13.226(b) (public interest). Therefore, the analysis ofthe Respondent's alternative Motion will be under the third ground identified in 14 C.F.R. § 13.226(b), which allows for withholding information whenever disclosure "is not otherwise required."

Page 5 of 8The FAA did not oppose redacting the Respondent's address, telephone number and email address onthe basis that continued publication ofthe information was an "unwarranted invasion of [the Respondent's] personal privacy." (Response 1-2.) As supportive authority, the FAA cited to the order issued in In re Husky Corp., FAA-2007-0120, Docket. No. CP07S00017 (June 9, 2008). (Response 2-3.) In Husky Corp., the order began by stating that "[t]hese proceedings contain information identified

... as sensitive security information." Jd. at 1. The U.S. Administrative LawJudge ordered the sensitive security information (not further described) withheld onthe grounds that it wouldbe "an unwarranted invasion ofpersonal privacy; and/or would reveal a trade secret or privileged or confidential commercial or financial information; and/or would be detrimental to transportation safety." Id. at 2. The Husky Corp. order appears to have withheld information under the first ground of 14 C.P.R. § 13.226(b) (aviation safety). Thus, the Husky Corp. decision to withhold security information is oflittle assistance in evaluating the Respondent's alternate request to redact her identifying information on the grounds ofpersonal privacy. The FAA is incorrect that the disclosure ofthe Respondent's contact information contained inthe record is per seanunwarranted invasion ofpersonal privacy. (Response 1.) In fact, the Rules ofPractice and the Federal Rules ofCivil Procedure bothprovide for publication ofcontact information inthe public record. 4 Although the Rules ofPractice do not directly speak to the obligation ofa named party to provide contact information, section 13.204(b) requires that an attorney or other representative filing a notice ofappearance in the action on behalfofa named party should include the name, address, and telephone number ofthe attorney or representative in the notice. 14 C.P.R.§ 13.204(b). Inthis case, the Respondent (i.e., the named party in this action) appeared as her own representative. As such, her contact information, serving as her ownrepresentative, is included in the record. It should also be noted that the Respondent voluntarily providedher e-mail address to the FAA and this administrative court as an alternative method ofservice for litigation documents. (5/14/13 Tr. 16:14-19; 17:2-18.) Thus, the Rules ofPractice establish that apro se respondent's contact information should usually become part ofthe record and available to the public. 14 C.P.R.§ 13.204(b). In addition, other requirements contained in the Rules ofPractice, while not creating a legal requirement that the information be available to the public, create a practical requirement of disclosure. When serving documents, the Office ofHearings, the FAA, andthe respondent(s) all use a certificate ofservice or service listto provide proofofservice. 14 C.F.R. 

### § 13.211(c). These documents are important to show when, where, and upon whom a document was served. In the instant case, the Respondent's contact information appears on all the service lists filed, and occasionally is also contained in the transcripts when clarification ofservice information was requested.

4 Although the Federal Rules ofCivil Procedure are not binding in FAA civil penalty proceedings, they maybe used as guidance. Rule ll(a) ofthe Federal Rules ofCivil Procedure provides that "[e]very pleading, written motion, and other paper must be signed by

... a party personally ifthe party is unrepresented. The paper must state the signer's address, e-mail address, and telephone number." Fed. R. Civ. P. ll(a). Page 6 of 8The practical efiect offinding that disclosure ofany named respondent's contact information is per se an unwarranted invasion ofpersonal privacy would be to require that each document filed in any civil penalty proceedings be accompanied by a substitute filing, with each named respondent's contact information redacted. This would not only be contrary to the published regulations, but it would also impose a substantial burden for compliance on all parties and the Hearing Docket staff, especially when anamed respondent chose to appear

### prose. In the case herein, the Respondent has alleged privacy interests, buthas not presented any information to showthat withholding her contact information from the public is necessary to preserve privacy in a sensitive or highly personal matter.5 In addition, the Respondent has not alleged experiencing harm, other than her experience ofa former classmate asking her aboutthe matter. (6/11113 Tr. 6:9-15; Reply 1.) Although the Respondent has also alleged potential future harm in herjob search, her fears are speculative, and not supported by any specifically plead fact. While itis understandable thatthe Respondent does not want to be identified with a civil penalty proceeding, the reality is that she has been involved, and that such involvement is a matter ofpublic record unless special circumstances are proven to override public access to the proceeding. In this case, the Respondent has failed to meet herburden inproving that special circumstances ofpersonal privacy override the public's right ofaccess to information. In addition, although neither party addressed this issue, the timing ofthe Respondent's Motion also creates practical difficulties. Under normal circumstances the request to withhold information from the record is made at the time ofthe filing ofthe complaint. In addition, inthe case ofa motion to redact, the moving party is responsible for providing a redacted version ofthe documents. As previously noted herein, the full record ofthis proceeding has beenpublished on the Internet for several months. Itis unclear whether any practical method exists for effectively substituting redacted versions ofpreviously filed and published documents. 

### See DeltaAirlines, Inc., FAA Docket CP93WP0109, 1993 WL 13119069 at *2, Order ofALJ (May 13, 1993). In any event, the Respondent has not provided a sufficientjustification for undertaking such an endeavor.

IT IS HEREBY ORDERED: Pursuant to 14 C.F.R. 

### §13.205, §13.218, and §13.226(b), and after reviewing all pleadings and documents, as well as all relevant caselaw, decisions, regulations, statutory authority, and being fully advised; 1. The Respondent's Motion for Non-Disclosure ofthe Entire Record is denied. 2. The Respondent's alternate Motion to withhold her address, telephone number, and email from the record is denied.

5 For example, the courts have held that withholding a party's identification from the public record- i.e., allowing full orpartial anonymity in a case - is a remedy that should be rarely authorized, and usually only in exceptional cases involving matters ofa highly sensitive and personal nature, or where real danger or injury could result from the disclosure ofthe party's identity. NationalAssociation ofWaterfront Employees, 587 F.Supp.2d at 99-100; See also, Yaman v. UnitedStates Department of State, 786 F. Supp. 2nd 148 (20 11). Page 7 of 8SERVICE LIST- BY U.S. MAIL ORIGINAL & ONE COPY Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430, Wilbur Wright Building-Suite 2W10001

Mr. William P. Vines, Esq. Complainant's Counsel Federal Aviation Administration Office ofthe Regional Counsel, AS0-7 Southern Region P.O. Box 20636 Atlanta, GA 30320 TEL: 404-305-5200 FAX: 404-305-5223 Ms. CleliaAyala Respondent 11175 Georgia Avenue, Apt. 603 Wheaton, MD 20902 TEL: 305-588-9397 Judge J.E. Sullivan US. Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Avenue, S.E. (Ell-310) Washington, DC 20590 TEL: 202-366-2142 FAX: 202-366-7536 ONE COPY FDMS NO. FAA-2012-0910 (Civil Penalty Action)

1 For service in person orby expedited courier, use the follawing address: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2W1000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.I

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ij INTHEMAITEROF: CLELIAAYALA Respondent U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, D. C.

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# o DOCKET NO. FAA-2012-0910 FMCASENO. Judge ).E. Sullivan RESPONSE TO OPPOSITION OF COMPLAINANT

1. I'm gladthat Complainant agrees thatmy address, phone number and email address should notbemade public and should be sealed. Thatis anunwarranted invasion ofmy privacy. Unfortunately, that information has already beenpublished. Itmustbe removed immediately and not displayed or stored anywhere. Whatcanbe done about the damage publishing ithas already caused? 2. Itis not inthe public interest that

### this matter be left open for all to see. Although I agreed to paythe fine and not contestthis, the facts were not as Complainanthas argued. I did not do whatwas alleged. Infact, 1was injuredbythe crew member when he grabbed my phone from me and thenthrewitback at me.. (This after assisting the airline by agreeing to boarda different flight to help withtheir overcrowding.) However, I recognizedthat fighting the charges was useless. 3. As the Complainanthas pointed out inhis opposition, the regulations allowthe Judge to decide thatthe matter shouldbe sealed if

... the information is not otherwiserequired to bemade available to the public. Under the circumstances, given that I was injured by the airline after doingthem a favor, and that I paidthe fme regardless, I do notbelieve thatthe record ofthis incident is required to bemade available to the public. Ifthe record is made public, I request that my name be withheld. 4. I also requestthatthis matterbe expunged immediately from all databases.

Please excusethe lateness ofthis response but it takes me awhile to read, research, andthen formulate a response since English is my secondlanguage and I did notknowhowto write a response to opposition ofcomplaint.

Thankyou,

# ·~**~iaAyala** Defendant

### Smith, Cody 

### (OST) From: Sent: To: Subject:

Dear all, Clelia Ayala <ayalaclelia@gmail.com> Friday, June 28, 2013 6:29 PM Donna.Stanley@faa.gov; Smith, Cody (OST) Re: Notice of Settlement

Please find attached myresponse to opposition ofcomplainant letter. The original was sentto Judge Sullivan by regular mail. Thankyouvery much for all your help. Respectfully,

OnFri, Jun 28, 2013 at 6:27PM, CleliaAyala <ayalaclelia@gmail.com> wrote: Dear all, Please find attached myresponse to opposition ofcomplainant letter. The original was sentto Judge Sullivanby regular mail. Thankyouvery much for all your help. Respectfully,
OnTlm, Jun 13, 2013 at 3:57PM, <Doru1a.Stanley@faa.gov> wrote:



### Good Afternoon, Please find the attached document.

CleliaAyala Cell: 305-588-9397

CleliaAyala Cell: 305-588-9397

1