BEFORE THE

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

_____________________________________ Application of )

)

Dynamic Airways, LLC )

) DOCKET OST 2014

-

_______ for an amendment to its certificate of )

public convenience and necessity pursuant )

to 49 U.S.C. §41102 to engage in scheduled )

interstate and foreign air transportation )

of persons, property and mai l )

____________________________________ )

MOTION OF DYNAMIC AIRWAYS

FOR CONFIDENTIAL TREATMENT PURSUANT TO

RULE 302.12

Communications with respect to this document should be addressed to:

Joanne W. Young

David M. Kirstein

Kirstein & Young PLLC

1750 K St. N.W.

Washington, D.C. 20006

(202) 331

- 3348

jyoung@yklaw.com

dkirstein@yklaw.com

Counsel for Dynamic Airways, LLC

Submitted: May 9, 2014Dynamic Airways Motion for Confidential Treatment

1 BEFORE THE

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

_____________________________________ Application of )

)

Dynamic Airways, LLC )

) DOCKET OST 2014

-

_______ for an amendment to its certificate of )

public convenience and necessity pursuant )

to 49 U.S.C. §41102 to engage in scheduled )

interstate and foreign air transportation )

of persons, property and mail )

____________________________________ )

MOTION OF DYNAMIC AIRWAYS

FOR CONFIDENTIAL TREATMENT PURSUANT TO

RULE 302.12

Pursuant to section 302.12 of the Department’s Rules of Practice, Dynamic Airways hereby

moves to withhold from public disclosure :

 Exhibit 4 D

– Finances of Paul Kraus Businesses

 Exhibit 5 C

– Kenneth Woolley Financials

 Exhibit 5 D

– Kenneth Woolley Notes on Financials

 Exhibit 5 E

– Swift Air Balance Sheets

 Exhibit 6

– Dynamic Airways Financials 2011

- 2013

 Exhibit 11

– Dynamic Airways Purchase Agreement

 Exhibit 14

– Financial Forecast for Dynamic Airways

These documents are being filed with this Motion in a sealed envelope marked “Confidential

Materials

- Rule 12 Treatment Requested.” All t he information Dynamic Airways seeks to

with hold from public disclosure is exempt from mandatory public disclosure under the Freedom

of Information Act (“FOIA”) Exemption 4. 5 U.S.C. § 552 (b) (4) (2005). This exemptionDynamic Airways Motion for Confidential Treatment

2 protects “commercial or financial information obtained from a person [that is] privileged or

confidential.” See 5 U.S.C. (b) (4) (2005). In support of this Motion, Dynamic Airways submits

the following:

1. Exhibit 4 D

– Finances of Paul Kraus Businesses

– Exhibit 4 D includes privileged

and confidential financial records of private companies in which Paul Kraus holds a

significant amount of managerial or financial control. Financial records of private ly

owned companies, should be withheld from public discl osure.

2. Exhibit 5 C

– Kenneth Woolley Financials

– Exhibit 5 C are privileged and

confidential personal financial statement s of Kenneth Woolley

. Dynamic Airways

requests such personal financial information be withheld from public disclosure.

3. Exhibit 5 D

– Kenneth Woolley Notes on Financials

- Exhibit 5 D explains the

personal finances of Kenneth Woolley. 5 C helps to explain Kenneth Woolley’s

financial position in various different markets. This is privileged and confidential

commercial and financia l information subject to confidential treatment under FOIA

Exemption 4.

4. Exhibit 5 E

– Swift Air Balance Sheets

– Exhibit 5 E are the financial records of a

private ly owned airline in which Mr. Woolley owns a fifty percent interest

. Swift Air

financial r ecords are privileged and confidential commercial and financial

information subject to confidential treatment under FOIA Exemption 4.

5. Exhibit 6

– Dynamic Airways Financials 2011

- 2013

– Exhibit 6 are the applicant’s

income and balance sheet statements. As a privately held company, Dynamic

Airways financial records are subject to confidential treatment under FOIA

Exemption 4.

6. Exhibit 11

– Dynamic Airways Purchase Agreement

– Exhibit 11 is the Purchase

Agreement covering the sale of a substantial interest in Dynamic Airways to Mr.

Kraus and Mr. Woolley subject to approval by the Department. The Agreement

contains privileged and confidential commercial and financial information that would

not b e released to the public and is subject to confidential treatment under FOIA

Exemption 4.

7. Exhibit 14

– Financial Forecast for Dynamic Airways

– Exhibit 14 is Dynamic

Airway’s forecasted operating expenses and profits over the next year. This

informatio n is submitted solely in connection with Dynamic’s request to lift the

current restriction on the number of aircraft it may operat e in its current certificates.

This exhibit contains highly sensitive commercial and financial information of a

privately hel d company that would not be released to the public and is entitled to

confidential treatment under FOIA Exemption 4.Dynamic Airways Motion for Confidential Treatment

3 The documents for which Dynamic requests confidential treatment fall squarely within the

parameters of documents that courts have consi stently found to be subject to confidential

treatment under FOIA Exemption 4.

Commercial and Financial Information. Courts “have had little difficulty regarding

information as ‘commercial or financial’ if it relates to business or trade.” Exemption 4,

D epartment of Justice Guide to the Freedom of Information Act 266 (2009) (hereinafter

“Exemption 4”). The Court of Appeals for the District of Columbia Circuit noted the term

“commercial” cannot be confined to records that “reveal basic commercial operatio ns,” but

instead held that “records are commercial so long as the submitter has a ‘commercial interest’ in

them.” Id. at 266

- 67 (citing Pub. Citizen Health Research Group , 704 F.2d at 1290); Judicial

Watch, Inc.

, v. DOE , 310 F. Supp. 2d 271, 308 (D.D.C. 2 004) (holding reports that “constitute

work done for clients” are “commercial in nature”). Similarly, protection of financial

information has been held to include economic data generated by the corporation or other

business entities. See Exemption 4 at 27 0. Commercial or financial information examples

include: “business sales statistics; research data; technical designs; customer and supplier lists;

profits and loss data; overhead and operating costs; and information on financial condition.” Id.

at 270

- 71; see Landfair v. U.S. Dep't of the Army , 645 F. Supp. 325, 327 (D.D.C. 1986).

Privileged or Confidential. Commercial and financial documents may be withheld under

Exemption 4 if they are “privileged” or “confidential.” 5 U.S.C. §522(b)(4) . A two pron g test is

used to determine whether information submitted to a federal agency is “confidential” for FOIA

purposes. Commercial and financial matters are considered confidential for the purposes of the

exemption if disclosure of the information is “likely. . . to cause substantial harm to the

competitive position of the person from whom the information was obtained.” Nat’l Parks andDynamic Airways Motion for Confidential Treatment

4 Conserv. Ass’n v. Morton , 498 F.2d 765, 770, 162 U.S. App. D.C. 223 (D.C. Cir. 1974).

Dynamic is concerned that the informat ion provided to the government could cause substantial

harm to the competitive position of the company.

The following documents should be exempt from disclosure under 5 U.S.C. (b) (4) for the

following reasons:

1. Exhibits 4 D (Finances of Paul Kraus Businesses), 5 E (Swift Air Balance Sheets) and

6 (Dynamic Airways Financials 2011

- 2013) are protected from disclosure under

FOIA because they pertain to the financial operations of various businesses in which

Paul Kra us has significant managerial or financial interest or control, including

Dynamic Airways . T he release of this information could permit competitors to gain

"valuable insights into the operational strengths and weaknesses of the supplier of the

information. " See Comstock International USA, Inc. v. Export

- Import Bank , 464 F.

Supp. 804, 810 (D.D.C. 1979). Courts have previously recognized the competitive

harm under Exemption 4 by release of company financial statements. See Gulf and

Western Industries, Inc. , v. U.S. , 615 F.2d 527 (D.C. Cir. 1979) (court protected

financial information, including profit rate, actual loss data, and general and

administrative expense rates.) Each exhibit contains proprietary profits and loss data

as well as information on the financial condition of each private company. This

information could impede the companies’ competitiveness and be used to the benefit

of competitors. In addition, th e s information in this exhibit is highly detailed and

would not otherwise be made accessib le to persons outside any one of the companies.

2. Exhibit 5 C and 5 D

– Kenneth Woolley Financials and Explanation of Financials

–

Exhibit 5 C and 5 D are proprietary financial statements and explanations of financial

investments of Kenneth Woolley . Th es e statement s would give the public detailed

knowledge of his private financial situation and allow his competitors to understand

his investment strategies. This would create substantial harm to the competitive

position of Kenneth Woolley as an entrepreneu r and businessman if others were to

get a hold of this information.

3. Exhibit 11

– Dynamic Airways Purchase Agreement

– Exhibit 11 is exempt from

mandatory public disclosure under FOIA because the Purchase Agreement pertains to

confidential financial and commercial information related to the parties interests in

Dynamic and the highly confidential terms related to the change in the ownership

structure.

4. Exhibit 14

– Financial Forecast for Dynamic Airways

– Exhibit 14 contains sensitive

financial and com mercial information, including Dynamic Airways proprietaryDynamic Airways Motion for Confidential Treatment

5 projected operating expenses and profits over the next year as well as their planned

aircraft expansion. Such operating expenses and other disclosures could allow other

airlines “ to cause substanti al harm to the competitive position of” Dynamic Airways

by easily realizing the opportunities in China as well as understand the strength and

weaknesses of Dynamic’s financials in the next year. Nat’l Parks and Conserv. Ass’

, 498 F.2d at 770. Moreover, t his information is highly detailed and would not

otherwise be made accessible to persons outside the company.

Therefore, this information should be afforded confidential treatment by the Department.

Respectfully Submitted,

Joanne W. Young

David M. Kirstein

Kirstein & Young PLLC

1750 K St. N.W.

Washington, D.C. 20006

(202) 331

- 3348

jyoung@yklaw.com

dkirstein@yklaw.com

Counsel for Dynamic Airways, LLCDynamic Airways Motion for Confidential Treatment

6 CERTIFICATE OF SERVICE

I certify that on, May 9, 2014, I caused to be served a copy of the foregoing Motion for

Confidential Treatment Pursuant to Rule 302.12 by email upon those addressees listed below:

urskr@state.gov ( Department of State )

cristinasa@state.gov ( Department of State )

esta.rosenberg@dot.gov ( Department of Transportation )

brian.hedberg@dot.gov ( Department of Transportation )

todd.homan@dot.gov ( Department of Transportation )

peter.irvine@dot.gov ( Department of Transportation )

laura.remo@dot.gov ( Department of Transportation )

brett.kruger@dot.gov ( Department of Transportation )

benjamin.taylor@dot.gov ( Department of Transportation)

john.s.duncan@faa.gov ( Federal Aviation Administratio n)

james.verre@faa.gov ( F ederal Aviation Administration )

dan.weiss@united.com ( United )

steve.morrissey@united.com ( United)

karine.faden@united.com ( United)

gmurphy@crowell.com ( Counsel for United )

sascha.vanderbellen@delta.com ( Delta )

jhill@cooley.com ( Counsel for JetBlue and Hawaiian )

perkmann@cooley.com ( Counsel for JetBlue and Hawaiian )

Robert.land@jetblue.com ( JetBlue )

howard.kass@aa.com (

American Airlines and U.S. Airways )

msinick@ssd.com ( Counsel for Alaska )

jyoung@yklaw.com ( Counsel for Spirit Airlines )

dkirstein@yklaw.com ( Counsel for Spirit Airlines )

bob.kneisley@wnco.com ( Southwest )

leslie.abbott@wnco.com ( Southwest )

ethan.blank@rjet.com ( Republic )

Robert.cohn@hoganlovells.com ( Counsel for Republic )

Patrick.rizzi@hoganlovells.com ( Counsel for Republic )

John.fredericksen@suncountry.com ( Sun Country )

Thomas.ting@suncountry.com ( Sun Country )

rpommer@atlasair.com (

Atlas )

anita.mosner@hklaw.com ( Counsel for UPS )

Jennifer.nowak@hklaw.com ( Counsel for UPS )

cefelts@fedex.com ( Fed Ex )

nssparks@fedex.com ( Fed Ex )

kevin.montgomery@polaraircargo.com ( Polar )

stephen.lachter@lachterlaw.com ( Frontier )

______________________ Signature