### 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 ofand ) 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, 12 1 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 · 1BEFORE 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 ofand antitrust immunity for alli ance 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 ofAir 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 ofthis 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, 547 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 theseMotion ofAir Tahiti Nu i 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 ifMotion ofAir 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. Ifreleased, 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 ofthis information, in sealed envelopes labeled " Confidential TreatmentMotion 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 ofAmerican 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 NuiCERTIFICATE OF SERVICE I hereby certify that a true and correct copy ofthe foregoing Motion ofAir Tahiti Nui for Confidential Treatment Under C
.F
.R. § 302.12 was served by electronic mail this 15 111 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 Airline Info info @ airlineinfo
. com