|Multi Request||Promotional materials: BlackHorse Solutions, Inc.|
|Submitted||May 30, 2020|
To Whom It May Concern:
Pursuant to the Freedom of Information Act, I hereby request the following records:
Product brochures, Powerpoint presentations, flyers and other promotional business documents from U.S. defense contractor BlackHorse Solutions, Inc. about products relating to cybersecurity, electronic warfare, virtual operations, artificial intelligence, and machine learning. Such product documents may carry terminology/keywords/descriptions that include: Computer Network Operations (CNO), Computer Network Exploitation (CNE), Computer Network Attacks (CNA), and quick reaction capability (QRC). BlackHorse Solutions, Inc. is a Virginia-headquartered company that specializes in developing technology for Department of Defense agencies. This FOIA seeks materials produced by the contractor to explain/sell/market their offerings to the U.S. government between the years 2014 and 2020 (or this current date of review). Such material would be likely held by the appropriate business contracting office and other divisions that make purchasing decisions.
Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.
Good afternoon Mr. Bing,
This is in response to your Freedom of Information Act (FOIA) request submitted to the U.S. Special Operations Command (USSOCOM) that was assigned control number USSOCOM FOIA 2020-196 (copy attached).
If any brochures, PowerPoint presentations, flyers, or promotional business documents were provided to USSOCOM by BlackHorse Solutions, Inc., those materials would likely be considered proprietary to the company. If you would like a copy of any information BlackHorse Solutions, Inc., may have produced, it would be best to contact the company directly. In addition, USSOCOM would withhold any information under all appropriate and applicable FOIA Exemptions being that BlackHorse Solutions' information is owned by them, BlackHorse Solutions would be considered the release authority, and the U.S. Government would not release any commercial or financial information that might cause substantial harm to a vendor's competitive position or impair the Government's ability to obtain information in the future.
USSOCOM FOIA 2020-196 is closed with no further action from this office.
Thank you and have a good day.
I am appealing the FOIA decision. (USSOCOM FOIA 2020-196)
I would like to remind the office that a document does not need to be created by the agency to be considered a federal record that should be searched for and reviewed in response to FOIA - it merely needs to be a document that the agency is in possession of. Here is the actual citation: "Records include all books, papers, maps, photographs, machine-readable materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the informational value of the data in them (44 U.S.C. 3301)."
Furthermore, to the extent that any materials may be withheld pursuant to FOIA's exemption #4, an agency cannot withhold records simply because they fall within the scope of an exemption. Rather, the agency/office must also show that it "reasonably foresees that disclosure would harm an interest protected by an exemption" or that disclosure is prohibited by law. More on the scope of exemption 4 can be found here: https://foia.wiki/wiki/Exemption_4. While, the Argus-Leader SCOTUS case was a blow to the expansiveness of the exemption, there have been some more favorable recent circuit court rulings reinforcing that agency's need to pass the foreseeable harm standard. Additional reference: https://unredacted.com/2020/01/13/unredacted-ukraine-emails-show-foia-exemption-5-abuse-court-rules-contractor-diversity-data-cant-be-hidden-by-exemption-4-and-more-frinformsum-1-13-2020/
Look forward to hearing back from you. Thank you for your help in processing this request. It is greatly appreciated. \
If you have any questions, give me a call or shoot me an email.
Records created by a vendor/contractor are considered proprietary to that company; FOIA Exemption (b)(4) would exempt information created by a business for release might cause substantial harm to a vendor's competitive position or impair the Government's ability to obtain information in the future.
The best way forward is for you to contact the company directly for the information being requested.
Your request remains closed with no further action from this office.