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

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, 2014
Dynamic 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 the information Dynamic Airways seeks to 

withhold 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 exemption
Dynamic 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 privately

owned companies, should be withheld from public disclosure. 

2. Exhibit 5 C – Kenneth Woolley Financials – Exhibit 5 C are privileged and 

confidential personal financial statements 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 financial 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 

privately owned airline in which Mr. Woolley owns a fifty percent interest. Swift Air 

financial records 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 be 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 

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

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

This exhibit contains highly sensitive commercial and financial information of a 

privately held 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 consistently 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, 

Department 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 operations,” 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. 2004) (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 270. 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 prong 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 and 
Dynamic 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 information 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 Kraus has significant managerial or financial interest or control, including

Dynamic Airways. The 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, thes information in this exhibit is highly detailed and 

would not otherwise be made accessible 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. These statements 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 entrepreneur 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 commercial information, including Dynamic Airways proprietary 
Dynamic 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 substantial 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, this 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, LLC
Dynamic 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 Administration)

james.verre@faa.gov (Federal 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