r '. --------~--------~--... au. 

BEFORE THE 

DEPA~TMENT OF TRANSPORTATION 

WASHINGTON, D.C. 

Application of 

) 

) 

) 

SWISS GLOBAL AIR LINES AG ) 

for a foreign air carrier permit pursuant to 

49 u~s.c. § 41301 and for an 

) Docket No. OST-2015-C).) } 7 . ) 

) 

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

DATED: 

MOTION OF SWISS GLOBAL AIR LINES AG 

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

April 07, 2015 

Communications with respect to the 

above should be addressed to: 

Andreas Tburnheer 

Swiss Global AirLines AG 

Malzgasse 15, CH-4052 Basel 

Switzerland 

Phone: +41 44 564 00 00 

Fax: +41 44 564 41 37 

E-mail: europeanfleet@swiss.com 
Application of 

BEFORE THE 

DEPARTMENT OF TRANSPORTATION 

WASHINGTON, D.C. 

SWISS GLOBAL AIR LINES AG 

) 

) 

) 

) 

for a foreign air carrier permit pursuant to 

49 U.S.C. § 41301 and for an 

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

) DocketNo. OST-2015-

) 

) 

) 

MOTION OF SWISS GLOBAL AIR LINES AG 

FOR CONFIDENTIAL TREATMENT UN.DER 14 C.F.R. § 302.12 

Swiss Global Air Lines AG (Swiss Global), 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 confidentiaf information Swiss Global 

is submining under seal in connection with the above captioned proceeding. Specitlcally, the 

confidential documents subject to this motion are being submitted in connection with Swiss 

Glob;il's application for exemption authority and a foreign air carrier permit to provide 

scheduled and charter foreign air transportation of persons, property and mail from any point or 

points behind Switzerland, via any point or points in Switzerland and any intermediate points, to 

any point or points in the United States·and beyond. The confidential doCUJ!I~rits are identified 

and described in the attached index. Swiss Global respectfully requests that access to these 

documents be limited to counsel and outside experts for interested.parties. 

In support of this motion, Swiss Global states as follows: 

I. THE CONFIDENTIAL INFORMATION IS PROTECTED FROM PUBLIC 

DISCLOSURE UNDER THE FREEDOM OF INFORMATION ACT 

2 

• 
The confidential information being submitted by Swiss Global is protected from public 

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

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 substantia_! 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. NM.B, 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 of Northwest 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 t~ 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 (I) commercial or 

financial in nature, (2) obtained from a person, and (3) privileged or confidential. See Public 

3 
Citizen Health Research Group v. FDA, 704 F.2d -1280, 1290 (D.C. Cir. 1983). All of-the 

confidential information being submitted by Swiss Global 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 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 Swiss Global 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. 

1974), the Court held that information is "confi_d~ntial" for purposes of exemption (4) if it would 

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

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

ability to ob!ain necessary information in the future; or (2) to cause substantial harm to the 

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

Swiss Global submits that public disclosure of the 'type of confidential -information at 

issue here would cause slibstanti~l 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 

4 
LIMITED TO COUNSEL AND OUTSIDE EXPERTS 

Swiss Global is submitting highly sensitive internal corporate documents and data which 

should be accorded limited access. Such acce_ss sh~uld be granted only to counsel and outside 

experts who file Rule i2 affidavits stating that the- affiant will (I) 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. 

The subject materials contain highly sensitive commercial information relating to Swiss 

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

publicly released. If released, competitors would gain valuable insights into Swiss Global's 

financial performance and other competitively sensitive matters. 

In order to minimize the risk of harmful disclo~ure of this competitively sensitive 

information, access should be strictly limited; as requested. Swiss Global 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 arid 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 confidentiill information against the 

competitive harm to the applicants ~hat would result if access were expanded, and conclud(;ld that 

"the undue competitive harm to the applicants outweighs the commenters' rieed for expanded 

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

5 
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"interested parties to this pro~eeding can obtain adequate advice on the merits of the application 

through outside experts an~ pe.rsons authorized to review the materials" (M.). See also, ~ 

Joint Application of American and Canadian International, Order 96-I -6, January II, 1996, p. 3. 

Access to Swiss Global's internal documents and data should be limited in a comparable 

manner, in light of the undue competitive hann t_hat would result from a broader disclosure of 

such highly sen~itive information. 

CONCLUSION 

The Department should grant this motion to withhold proprietary and commercially 

sensitive confidential information from public disclosure, as Aircalin has requested herein. 

Dated: April 07,2015 

Andreas Thumheer 

Swiss Global Air Lines AG 

Malzgasse I 5, CH-4052 Basel 

Switzerland 

Phone: +41 44 564 00 00 

Fax: +41 44 564 4 I 37 

E-mail: europeanfleet@swiss.com 

6 
... . .. .. 

INDEX OF DOCUMENTS SUBJECT 

TO MOTION FOR CONFIDENTIAL TREATMENT 

Exhibit 5 ....................................................................... ···'· ..... Financial Statements 

7