BEFORE THE 

DEPARTMENT OF TRANSPORTATION 

WASHINGTON, D.C. 

) 

Joint Application of ) 

) 

AIR TAHITI NUl ) 

SOCIETE AIR FRANCE ) 

DELTA AIR LINES, INC. ) 

KLM ROYAL DUTCH AIRLINES ) 

ALITALIA-COMP AGNIA AEREA ITALIAN A S.P.A. ) 

) 

under 49 U.S.C. §§ 41308 and 41309 for approval of and ) 

antitrust immunity for alliance agreements ) 

Docket OST-2013-

MOTION OF AIR TAHITI NUl 

FOR CONFIDENTIAL TREATMENT 

UNDER 14 C.F.R. § 302.12 

Communications with respect to the above should be addressed to: 

Evelyn D. Sahr 

James G. Ehrig 

Eckert Seamans Cherin & Mellott, LLC 

1717 Pennsylvania Ave., NW, 121

h Floor 

Washington, D.C. 20006 

Tel: (202) 659-6622 

Fax: (202) 659-6699 

Counsel for Air Tahiti Nui 

DATED: April15, 2013 

: 1\ 

_, 

{)u 1·1 
BEFORE THE 

DEPARTMENT OF TRANSPORTATION 

WASHINGTON, D.C. 

Joint Application of 

AIR TAHITI NUl 

SOCIETE AIR FRANCE 

DELTA AIR LINES, INC. 

) 

) 

) 

) 

) 

) 

KLM ROYAL DUTCH AIRLINES ) 

ALITALIA-COMPAGNIA AEREA ITALIANA S.P.A. ) 

under 49 U.S.C. §§ 41308 and 41309 for approval of and 

antitrust immunity for alliance agreements 

) 

) 

) 

Docket OST-2013-

MOTION OF AIR TAHITI NUl 

FOR CONFIDENTIAL TREATMENT 

UNDER 14 C.F.R. § 302.12 

Air Tahiti Nui, pursuant to Rule 12 of the Department's Rules of Practice, 14 C.P.R. § 

302.12, hereby moves that the Department withhold certain proprietary and commercially 

sensitive confidential information from public disclosure Air Tahiti Nui is submitting under seal 

in connection with the above captioned proceeding. 1 Air Tahiti Nui is submitting these 

confidential documents to facilitate the Department's processing of the Joint Application for 

approval of and antitrust immunity for alliance agreements filed by Air Tahiti Nui, Societe Air 

France (Air France), Delta Air Lines, Inc. (Delta), KLM Royal Dutch Airlines (KLM), and 

Alitalia-Compagnia Aerea ltaliana S.p.A. (Alitalia). 

1 Air Tahiti Nui is filing a paper document production and a data CD with the Department. 
Motion of Air Tahiti Nui 

AprillS, 2013 

Page 2 

The confidential documents are identified and described in the attached index. Air Tahiti 

Nui respectfully requests that access to these documents be limited to counsel and outside 

experts for interested parties. 

In support of this motion, Air Tahiti Nui states as fo llows: 

I. THE CONFIDENTIAL INFORMATION IS PROTECTED FROM PUBLIC 

DISCLOSURE UNDER THE FREEDOM OF INFORMATION ACT 

The confidential information being submitted by Air Tahiti Nui is protected from public 

disclosure under various exemptions in the Freedom of Infom1ation 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 

infom1ation obtained from a person and privileged or confidential." 5 U.S.C. § 552(b)(4). This 

exemption has been construed to prevent public disclosure of infonnation that is not the type 

usually released to the public, and that if released would cause substantial harm to the 

competitive position of the person from whom the information was obtained. See e.g., Gulf & 

Western Industries, Inc. v. United States, 615 F.2d 527, 530 (D.C. Cir. 1980); American Airlines, 

Inc. v. NMB, 588 F.2d 863, 871 (2d Cir. 1978); National Parks & Conservation Ass'n v. Kieppe, 

54 7 F.2d 673, 684 (D.C. Cir. 1976) Joint Application of Delta and Virgin Atlantic, Order 94-5-

42, May 28 1994; Joint Application ofUn.ited and Lufthansa, Order 93 -1 2-32, December 18, 

1993; Joint Application of Northwest and KLM, Order 93-1-11 , January 8, 1993, p. 19; 

Information Directives Concern.ing CRS, Order 88-5-46, May 22, 1988; Carrier-Owned 

Computer Reservations Systems, ER-1385, Order 86-5-54, May 19, 1986; Information 

Directives Concern.ing CRS, Order 83-12-136, December 29, 1983. The purpose of these 
Motion of Air Tahiti Nui 

April 15, 2013 

Page3 

exemptions "is to protect the confidentiality of infom1ation which citizens provide to their 

government, but which would customarily not be released to the public, and to facilitate citizens' 

ability to confide in their govenm1ent." Burke Energy Corp. v. DOE, 583 F. Supp. 507, 510 (D. 

Kan. 1984). 

For infom1ation to qualify for exemption (4), the information must be (1) commercial or 

financial in nature, (2) obtained from a person, and (3) privileged or confidential. See Public 

Citizen Health Research Group v. FDA, 704 F.2d 1280, 1290 (D.C. Cir. 1983). All of the 

confidential information being submitted by Air Tahiti Nui satisfies this three-part test. 

First, the confidential information is commercial or financial in nature in that it relates to 

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 the public interest benefits that will result from granting approval of and 

antitrust inmmnity for the alliance agreements. 

Second, the information has been "obtained from a person" witlun the meanmg 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 "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 
Motion of Air Tahiti Nui 

April 15, 2013 

Page 4 

disclosure is likely to have either of the following results: "(1) to impair the Government's 

ability to obtain necessary information in the future ; or (2) to cause substantial ham1 to the 

competitive position of the person from whom the inforn1ation was obtained." 

Air Tahiti Nui submits that public disclosure of the type of confidential information at 

1ssue here would cause substantial 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. ACCESS TO THESE HIGHLY SENSITIVE DOCUMENTS SHOULD BE 

LIMITED TO COUNSEL AND OUTSIDE EXPERTS 

Air Tahiti Nui is submitting highly sensitive internal corporate documents and data which 

should be accorded limited access. Such access should be granted only to counsel and outside 

experts who file Rule 12 affidavits stating that the affiant will (1) use the information only for 

the purpose of participating in this proceeding, and (2) not disclose such information to anyone 

other than counsel or outside experts who have filed a valid affidavit. 

The subject materials contain highly sensitive commercial information relating to Air 

Tahiti Nui's international planning and strategic decision-making. The information contained in 

these documents has not been publicly released. If released, competitors would gain valuable insights into Air Tahiti Nui's internal strategies and objectives with respect to the most 

competitively sensitive matters. 

In order to minimize the risk of harmful disclosure of this competitively sensitive 

information, access should be strictly limited, as requested. Air Tahiti Nui is filing, concurrently 

with this motion, copies of this information, in sealed envelopes labeled "Confidential Treatment 
Motion of Air Tahiti Nui 

AprillS, 2013 

Page 5 

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 and policy. Thus, in United/Lufthansa, Order 93-12-32, supra, the 

Department granted the applicants' request to limit access to certain confidential information to 

counsel and outside experts who filed Rule 39 (now Rule 12) affidavits. In so limiting such 

access, the Department balanced the disclosure of the confidential information against the 

competitive harm to the applicants that would result if access were expanded, and concluded that 

"the undue competitive harm to the applicants outweighs the commenters' need for expanded 

access to the highly sensitive material in this case" (p. 5). The Department also noted that 

"interested parties to this proceeding can obtain adequate advice on the merits of the application 

through outside experts and persons authorized to review the materials" (ld.). See also, ~ 

Joint Application of American and Canadian International, Order 96-1-6, January 11 , 1996, p. 3. 

Access to Air Tahiti Nui' s internal documents and data should be limited in a comparable 

manner, in light of the undue competitive ham1 that would result from a broader disclosure of 

such highly sensitive information. 
Motion of Air Tahiti Nui 

April 15, 2013 

Page 6 

CONCLUSION 

The Department should grant this motion to withhold proprietary and commercially 

sensitive confidential infonnation from public disclosure, as Air Tahiti Nui has requested herein. 

Dated: April 15, 2013 

Evelyn 

James . Ehrig 

Eckert eamans Cherin & Mellott, LLC 

1717 Pennsylvania Avenue, NW 

1i11 Floor 

Washington, D.C. 20006 

Tel: (202) 659-6615 

Fax : (202) 659-6699 

Counsel for Air Tahiti Nui 
CERTIFICATE OF SERVICE 

I hereby certify that a true and correct copy of the foregoing Motion of Air Tahiti Nui for 

Confidential Treatment Under C.F.R. § 302.12 was served by electronic mail this 15111 day of 

April 2013 on the following: 

TO COMPANY E-MAIL 

Krishna Urs U.S. Depm1ment of State urskr@state.gov 

Francis Heil American Airlines Inc. francis.heil@aa.com 

Robert Wirick robert.wirick@aa.com 

Howard Kass US Airways, Inc. howard.kass@usairways.com 

Benjamin Slocum benjamin.slocum@usairways.com 

Dan Weiss dan. weiss@united.com 

Thomas Bolling United Air Lines, Inc. thomas. bolling@united.com 

Todd Homan Department of todd.homan@dot.gov 

Peter Irvine Transportation peter.irvine@dot. gov 

Reese Davidson reese.davidson@dot.gov 

Bob Goldner bob.goldner@dot.gov 

Paul Gretch paul.gretch@dot.gov 

Esta Rosenberg esta.rosenberg@dot.gov 

Gina Marie Lindsey Los Angeles World gmlindsey@lawa.org 

Airports 

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