(a) Filing confidential information. If a party wants certain information that the party is filing not made available to the public, the party must do the following:
(1) Place the information in a separate sealed envelope and clearly mark the envelope “CONFIDENTIAL.” At least the first page of the document in the envelope also must be marked “CONFIDENTIAL.”
(2) Attach to this envelope a cover document marked “Confidential information filed with administrative law judge” or “Confidential information filed with Assistant Chief Counsel for Litigation.” The cover document must include, at the least, a short statement of what is being filed, such as “Respondent's motion for confidentiality order.”
(3) Unless such a motion has already been granted, enclose a motion for confidentiality order in accordance with paragraph (c) of this section. The motion must be in the sealed envelope if it contains confidential information; otherwise the motion must be outside of the sealed envelope.
(b) Marked information not made public. If a party files a document in a sealed envelope clearly marked “CONFIDENTIAL” the document may not be made available to the public unless and until the administrative law judge or the FAA decisionmaker decides it may be made available to the public in accordance with 51 U.S.C. 50916.
(c) Motion for confidentiality order. If a party is filing, is requested to provide in discovery, or intends to offer at the hearing, information that the party does not wish to be available to the public, the party must file a motion for a confidentiality order.
(1) The party must state the specific grounds for withholding the information from the public.
(2) If the party claims that the information is protected under 51 U.S.C. 50916, and if both the complainant and the respondent agree that the information is protected under that section, the administrative law judge must grant the motion. If one party does not agree that the information is protected under 51 U.S.C. 50916 the administrative law judge must decide. Either party may file an interlocutory appeal of right under § 406.173(c).
(3) If the party claims that the information should be protected on grounds other than those provided by 51 U.S.C. 50916 the administrative law judge must grant the motion if, based on the motion and any response to the motion, the administrative law judge determines that disclosure would be detrimental to safety, disclosure would not be in the public interest, or that the information is not otherwise required to be made available to the public.
(4) If the administrative law judge determines that the information is not necessary to decide the case or would not otherwise lead to the discovery of relevant material, the administrative law judge must preclude any inquiry into the matter by any party.
(5) If the administrative law judge determines that the requested material may be disclosed during discovery, the administrative law judge may order that the material may be discovered and disclosed under limited conditions or may be used only under certain terms and conditions.
(6) If the administrative law judge determines that the requested material is necessary to decide the case, or would otherwise lead to the discovery of relevant material, and that a confidentiality order is warranted, the administrative law judge must -
(i) Provide an opportunity for review of the document by the attorneys of record off the record.
(ii) Provide procedures for excluding the information from the record, or order that portion of the record that includes confidential information be closed.
(iii) Order that the parties must not disclose the information in any manner and the parties must not use the information in any other proceeding.
(7) If an administrative law judge orders a record closed, in whole or in part:
(i) The closed record is not available to the public.
(ii) The closed record is available to the parties' attorneys of record.
(iii) The administrative law judge may determine whether the closed record is available to the parties, the parties' representatives, or other persons such as witnesses for a party.
(iv) No party, attorney of record, representative of record, or person who receives information from such persons, may disclose information that has been protected under this section except to a person authorized by this section or the administrative law judge to receive it.
(v) If a person other than one authorized by this section desires to view or copy a closed record, the person must file a motion to open the record.
[Doc. No. FAA-2001-8607, 66 FR 2180, Jan. 10, 2001, as amended by Amdt. 406-7, 77 FR 20532, Apr. 5, 2012]