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BEFORETHE**DEPA~TMENT** 

### OFTRANSPORTATION WASHINGTON, D.C.
Application of ) ) ) ) 

### SWISS GLOBALAIRLINES AG for a foreign aircarrierpermitpursuantto 49**u~s.c.** 

### §41301 andfor an ) DocketNo. OST-2015-

## C).) }

# 7
. ) ) 

### exemption pursuantto

## 49 U$.C. 

### §40109 )



### DATED: MOTION OFSWISS GLOBALAIR LINES AG FORCONFIDENTIALTREATMENT UNDER 14 C.F.R. § 

### 302.12

April 07, 2015 Communicationswith respecttothe above should be addressed to: AndreasTburnheer Swiss Global AirLinesAG Malzgasse 15, CH-4052 Basel Switzerland Phone: +41 44 564 00 00 Fax: +41 44 56441 37 E-mail: europeanfleet@swiss.com

### Application of BEFORETHE DEPARTMENTOFTRANSPORTATION WASHINGTON, D.C.

SWISS GLOBALAIRLINES AG ) ) ) ) 

### for a foreign aircarrierpermitpursuantto 49 U.S.C. 

### §41301 and for an exemption pursuantto 49 U.S.C. 

### § 40109 ) DocketNo. OST-2015- ) ) )



### MOTION OFSWISS GLOBALAIR LINESAG FOR CONFIDENTIALTREATMENTUN.DER 14 C.F.R. § 

### 302.12 Swiss Global Air Lines AG (Swiss Global), pursuant to Rule 12 of the Department's Rules ofPractice, 14 C;F.R. 

### § 302.12, hereby moves that the Department withhold from public disclosure certain proprietary and commercially sensitive confidentiafinformation 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 ofpersons, property and mail from any point or points behind Switzerland, via any point or points in Switzerlandand 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 outsideexperts for interested.parties. In support ofthis motion, SwissGlobal states as follows: 

### I. THECONFIDENTIALINFORMATIONIS PROTECTED FROM PUBLIC DISCLOSUREUNDERTHEFREEDOM OFINFORMATIONACT 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 orconfidential." 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 ofthe 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'nv. Kieppe, 547 F.2d 673, 684 (D.C. Cir. 1976) Joint Application ofDelta 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 tothepublic, and tofacilitate 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


### 3Citizen Health Research Group v. FDA, 704 F.2d -1280, 1290 (D.C. Cir. 1983). All of-the confidential information beingsubmitted by SwissGlobal satisfies thisthree-parttest. First, the confidential information is commercial or financial in nature in that it relatesto 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 ofexemption (4) ifit 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 ofthe person from whom the information wasobtained." 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. ACCESSTOTHESE HIGHLY SENSITIVE DOCUMENTS SHOULD BE 4LIMITED TO COUNSELAND 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 ofparticipating in this proceeding, and 

### (2) not disclose such information to anyone otherthan counsel oroutsideexperts 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 othercompetitively 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 ofthis 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 informationto 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 ifaccess 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 ofthe application through outside experts**an~** pe.rsons authorized to review the materials" (M.). See also,**~** Joint Application ofAmerican and Canadian International, Order96-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 ofthe 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 sensitiveconfidential information from public disclosure, asAircalin has requested herein.

Dated: April 07,2015

Andreas Thumheer Swiss Global Air Lines AG Malzgasse I5, CH-4052 Basel Switzerland Phone: +41 44 564 00 00 Fax: +41 44 564 4I 37 E-mail: europeanfleet@swiss.com

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INDEX OF DOCUMENTS SUBJECT TO MOTION FOR CONFIDENTIALTREATMENT
Exhibit 5
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.....Financial Statements

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