BEFORE THE 

DEPARTMENT OF TRANSPORTATION 

WASHINGTON, DC 

__________________________________________ 

 ) 

Application of ) 

 ) Docket OST-DOT-2011-0186 

Hawaiian Airlines, Inc. ) 

 ) 

For a Statement of Authorization Pursuant ) 

to 14 C.F.R. Part 212 Codesharing With ) 

Virgin Australia International Airlines Pty Ltd ) 

 d/b/a V Australia ) 

__________________________________________) 

MOTION OF HAWAIIAN AIRLINES, INC. 

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

Communications with respect to this document should be directed to: 

 Jonathan B. Hill, Esq. 

 J. Parker Erkmann, Esq. 

 Dow Lohnes PLLC 

 1200 New Hampshire Ave., NW 

 Suite 800 

 Washington, DC 20036 

 202/776-2000 

 jhill@dowlohnes.com

 perkmann@dowlohnes.com

 Counsel for Hawaiian Airlines, Inc. 

October 7, 2011 
1 

BEFORE THE 

DEPARTMENT OF TRANSPORTATION 

WASHINGTON, DC 

__________________________________________ 

 ) 

Application of ) 

 ) Docket DOT-OST-2011-0186 

Hawaiian Airlines, Inc. ) 

 ) 

For a Statement of Authorization Pursuant ) 

to 14 C.F.R. Part 212 Codesharing With ) 

Virgin Australia International Airlines Pty Ltd ) 

 d/b/a V Australia ) 

__________________________________________) 

MOTION OF HAWAIIAN AIRLINES, INC. 

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

Pursuant to Rule 12 of the Department’s Rules of Practice (14 C.F.R. § 302.12), 

Hawaiian Airlines, Inc. (hereinafter “Hawaiian”) respectfully moves to withhold from 

public disclosure the confidential unredacted version of the Free Sale Codeshare 

Agreement between Virgin Australia International Airlines Pty Ltd d/b/a V Australia 

(hereinafter, “V Australia”) and Hawaiian (“Agreement”). The Agreement is being 

submitted in support of Hawaiian’s Application for a Statement of Authorization 

(“Application”) filed with the Department on September 28, 2011. Pursuant to Rule 12, 

the confidential unredacted version of the Agreement for which Hawaiian seeks 

confidential treatment is being submitted separately under seal, marked with a request for 

confidential treatment pursuant to Rule 12 (§ 302.12). 

In support of this motion, Hawaiian states as follows: 

The information for which Hawaiian hereby requests confidential treatment is 

confidential and competitively sensitive information, including business terms governing 
2 

its new commercial relationship with V Australia. Index A (attached hereto) lists the 

information included in the Agreement for which confidential treatment is requested. In 

addition to filing the Agreement under seal, Hawaiian previously submitted a redacted 

copy of the Agreement together with its Application to the Department via the public 

docket, which omits the information for which confidential treatment is requested by this 

motion. 

 Pursuant to 14 C.F.R. § 302.12, any person who objects to the public disclosure of 

any information filed in any proceeding, or pursuant to the provisions of the statute, or 

any Department rule, regulation, or order may request that information submitted to the 

Department not be disclosed to the public if that information falls within one of the 

exemptions from disclosure in the Freedom of Information Act, 5 U.S.C. §§ 552(b)(1)-(9) 

(“FOIA”). Hawaiian submits that the information for which it seeks confidential 

treatment herein falls within § 552(b)(4) of FOIA, which provides that privileged or 

confidential commercial and financial information or trade secrets obtained from a 

private person are specifically exempted from the requirements of public disclosure due 

to its sensitive business nature.1

Exemption 4 has been held to include “information that is not the type usually 

released to the public and if of the type that, if released to the public, would cause 

substantial harm to the competitive position of the person from whom the information 

was obtained.”2

 Exemption 4 is designed “to protect the confidentiality of information 

which citizens provide to their government, but which would customarily not be released 

 

1

 Gulf & Western Industries, Inc. v. United States, 615 F.2d 527, 529 (D.C. Cir. 1979). 2

 Id.; see also American Airlines, Inc. v. NMB, 588 F.2d 863, 871 (2d Cir. 1978); Nat’l Parks & 

Conservation Ass’n v. Kleppe, 547 F.2d 673, 684 (D.C. Cir. 1976); Joint Application of Delta and Virgin 
3 

to the public, and to facilitate citizens’ ability to confide in their government.”3 In order 

to fall within Exemption 4, the information at issue must be: (1) commercial of financial 

in nature; (2) obtained from a person outside the government; and (3) privileged or 

confidential.4

Here, the information for which confidential treatment is sought in this motion 

meets this three-part test because it is commercial information, obtained from a person 

outside the government (Hawaiian), and is confidential. See Gulf & Western, 615 F.2d at 

529. The D.C. Circuit has held that a commercial or financial matter is “confidential” for 

purposes of Exemption 4 if it would not customarily be released to the public by the 

person from whom it was obtained and if disclosure of the information is likely to: (1) 

impair the Government’s ability to obtain necessary information in the future; or (2) 

cause substantial harm to the competitive position of the person from whom the 

information was obtained.5

 The court in McDonnell Douglas noted, however, that this 

standard “does not require the party invoking Exemption 4 to prove disclosure certainly 

would cause it substantial competitive harm, but only that disclosure would ‘likely’ do 

so.”6

 Here, the information for which Hawaiian seeks confidential treatment meets the 

definition of “confidential” because the business terms governing Hawaiian’s and V 

Australia’s business relationship that would not normally be made available by Hawaiian 

to the public except for the Department’s requirement that it be filed in a public docket. 

 Atlantic, Order 94-5-42 (May 28, 1994); Joint Application of United and Lufthansa, Order 93-12-32 (Dec. 

18, 1993); Joint Application of Northwest and KLM, Order 93-1-11 (Jan. 8, 1993). 3

 Burke Energy Corp. v. Dep’t of Energy, 583 F. Supp. 507, 510 (D. Kan. 1984); Sterling Drug, Inc. v. 

Federal Trade Comm’n, 450 F.2d 698, 709 (D.C. Cir. 1971). 4

 See Public Citizen Health Research Group v. FDA, 704 F.2d 1280, 1290 (D.C. Cir. 1983); Gulf & 

Western, 615 F.2d at 529. 5

 Nat’l Parks & Conservation Ass’n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974); McDonnell Douglas 

Corp. v. Dep’t of the Air Force, 375 F.3d 1182, 1187 (D.C. Cir. 2004). 6

 375 F.3d at 1187. 

Index A 

Reasons for Confidential Designation 

Agreement 

Article 

Reason for Redaction 

2(e) Describes how codeshare inventory will be managed in this 

commercial relationship 

2(f) Describes pricing in this commercial relationship 

3 Describes each carrier’s responsibility for payments and taxes 

in this commercial relationship 

9 Describers each carrier’s responsibility for indemnifying the 

other in this commercial relationship 

10 Describes each carrier’s insurance coverage and obligations in 

this commercial relationship 

17 Describes the accounting procedures governing this commercial 

relationship 

22 Contact information for Hawaiian and V Australia executives 

redacted