BEFORE THE DEPARTMENT OF TRANSPORTATION WASHINGTON, DC

__________________________________________ ) Application of ) ) Docket OST-DOT-2011-0186 Hawaiian Airlines, Inc. ) ) For a Statement of Aut horization 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 TREATMEN T 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, 20111 BEFORE THE DEPARTMENT OF TRANSPORTATION WASHINGTON, DC

__________________________________________ ) Application of ) ) Docket DOT-OST-2011-0186 Hawaiian Airlines, Inc. ) ) For a Statement of Aut horization 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 TREATMEN T 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. (herei nafter “Hawaiian”) respectfu lly moves to withhold from public disclosure the confidential unredact ed version of the Free Sale Codeshare Agreement between Virgin Australia Internat ional Airlines Pty Ltd d/b/a V Australia (hereinafter, “V Australia”) and Hawaiian (“Agreement”). The Agreement is being submitted in support of Hawaiian’s Applicat ion 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 separa tely under seal, marked with a request for confidential treatment pursuan t 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 info rmation, including business terms governing2 its new commercial relationship with V Austra lia. Index A (attached hereto) lists the information included in the Agreement for whic h confidential treatment is requested. In addition to filing the Agreement under seal, Hawaiian previously submitted a redacted copy of the Agreement together with its A pplication 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 pur suant to the provisions of the statute, or any Department rule, regulation, or order ma y 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 “i nformation that is no t the type usually released to the public and if of the type that, if releas ed 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 th eir 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 Virgin3 to the public, and to facil itate 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 outsi de the government; and (3) privileged or

confidential. 4 Here, the information for which confiden tial treatment is sought in this motion meets this three-part test because it is commercial information, obtained from a person outside the government (Hawaiia n), and is confidential. See Gulf & Western , 615 F.2d at

529. The D.C. Circuit has held that a commerci al or financial matter is “confidential” for purposes of Exemption 4 if it would not cust omarily be released to the public by the person from whom it was obtained and if disclo sure 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 th e 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 relationshi p that would not normally be made available by Hawaiian to the public except for the Department’s require ment 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 respons ibility for payments and taxes in this commercial relationship 9 Describers each carrier’s re sponsibility for indemnifying the other in this commercial relationship 10 Describes each carrier’s insura nce coverage and obligations in this commercial relationship 17 Describes the accounting procedur es governing this commercial relationship 22 Contact information for Hawaiia n and V Australia executives redacted