IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _____________________________ No. 06-12981-BB _____________________________ WATKINS MOTOR LINES, INC., Plaintiff-Appellant, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, et al., Defendant-Appellee. ______________________________ On Appeal from the United States District Court for the Middle District of Florida District Court No. 8:05-cv-1065-SCB-TBM ______________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLEE ______________________________ RONALD S. COOPER General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel JENNIFER S. GOLDSTEIN EQUAL EMPLOYMENT OPPORTUNITY Attorney COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, DC 20507 (202) 663-4733 Watkins Motor Lines, Inc. v. EEOC., No. 06-12981-BB CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT Pursuant to 11th Cir. R. 26.1-1, I hereby certify that the following persons or entities have an interest in the outcome of this case: Vincent J. Blackwood, Acting Associate General Counsel, EEOC Hon. Susan C. Bucklew, U.S. District Judge, M.D. Fla. Joan M. Canny, Attorney, Watkins Motor Lines, Inc. Ronald S. Cooper, General Counsel, EEOC Naomi C. Earp, Chair, EEOC Equal Employment Opportunity Commission (EEOC), Appellee Jennifer S. Goldstein, Attorney, EEOC Hon. Thomas B. McCoun III, U.S. Magistrate Judge, M.D. Fla. Erin N. Norris, Attorney, EEOC Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., Appellant's Counsel Watkins Associated Industries, Inc., parent of Appellant Watkins Motor Lines, Inc., Appellant Carolyn L. Wheeler, Assistant General Counsel, EEOC _________________________ Jennifer S. Goldstein STATEMENT REGARDING ORAL ARGUMENT This case involves a straightforward application of well-settled principles of law. The Commission therefore believes oral argument is unnecessary in this case. TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT ............................................ C-1 of 1 STATEMENT REGARDING ORAL ARGUMENT ...................................... i TABLE OF AUTHORITIES ......................................................................... iv STATEMENT OF JURISDICTION .......................................................................... 1 STATEMENT OF THE ISSUES .......................................................................... 1 STATEMENT OF THE CASE .......................................................................... 1 A. Course of Proceedings and Disposition Below ..................... 1 B. Statement of Facts .............................................. 4 C. District Court Decisions ....................................... 11 STANDARD OF REVIEW ......................................................................... 14 SUMMARY OF ARGUMENT ......................................................................... 16 ARGUMENT I. The district court properly held that materials contained in the files of the EEOC's ongoing investigation were properly withheld under exemption 7(A) of FOIA .................................................................... 17 A. The documents compiled during the EEOC's investigation of alleged discrimination by an employer were compiled for law enforcement purposes ......................................................................... 19 B. Release of information contained within the files of an ongoing investigation could reasonably be expected to interfere with enforcement proceedings .............................................. 24 II. Watkins' claim in Count II seeking documents is moot because Watkins has already received the documents .................................................. 38 CONCLUSION ......................................................................... 39 CERTIFICATE OF SERVICE ......................................................................... 40 CERTIFICATE OF COMPLIANCE ......................................................................... 41 TABLE OF AUTHORITIES CASES Alyeska Pipeline Serv. Co. v. EPA, 856 F.2d 309 (9th Cir. 1988) .................................36 Arenberg v. Drug Enforcement Ag'y, 849 F.2d 579 (11th Cir. 1988) ............................... 21 Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc) ..................... 20 Bonner v. U.S. Dep't of State, 928 F.2d 1148 (D.C. Cir. 1991) ............................ 31,32 Carney v. U.S. Dep't of Justice, 19 F.3d 807 (2d Cir. 1994) ................................. 12 Chivlis v. Securities & Exchange Comm'n, 673 F.2d 1205 (11th Cir. 1982) ............................... 14 Committee on Masonic Homes v. NLRB, 556 F.2d 214 (3d Cir.1977) .................................. 21 Curran v. Dep't of Justice, 813 F.2d 473 (1st Cir. 1987) ............................ 18, 26 Davin v. U.S. Dep't of Justice, 60 F.3d 1043 (3d Cir. 1995) ......................... 20, 22, 26 EEOC v. Citicorp Diners Club, Inc., 985 F.2d 1036 (10th Cir. 1993) ............................... 28 EEOC v. Frank's Nursery & Crafts, Inc., 177 F.3d 448 (6th Cir. 1999) ................................ 28 EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539 (9th Cir. 1987) ................................ 28 EEOC v. Harvey L. Walner & Assocs., 91 F.3d 963 (7th Cir. 1996) ................................ 28 EEOC v. Huttig Sash & Door Co., 511 F.2d 453 (5th Cir. 1975) ............................ 27, 30 EEOC v. Morgan Stanley & Co., 132 F. Supp. 2d 146 (S.D.N.Y. 2000) ................................ 28 EEOC v. Pemco Aeroplex, Inc., 383 F.3d 1280 (11th Cir. 2004) ....................... 23, 29, 30 EEOC v. Waffle House, Inc., 534 U.S. 279 (2002) ......................................23, 29 Gen. Tel. Co. of the Northwest v. EEOC, 446 U.S. 316 (1980) ..........................................30 In re Bemis Co., 279 F.3d 419 (7th Cir. 2002) ... 23 In re Dep't of Justice, 999 F.2d 1302 (8th Cir. 1993) (en banc)....................... 37 J.P. Stevens & Co. v. Perry, 710 F.2d 136 (4th Cir. 1983) ................ 20, 24, 26, 35, 36 John Doe Agency v. John Doe Corp., 493 U.S. 146 (1989) ..................................... 18, 31 King v. U.S. Dep't of Justice, 830 F.2d 210 (D.C. Cir. 1987) ................................37 Lovell v. Alderete, 630 F.2d 428 (5th Cir.1980).. 38 Mapother v. Dep't of Justice, 3 F.3d 1533 (D.C. Cir. 1993) ............................... 18 Martinez v. EEOC, 2004 WL 2359895 (W.D. Tex. Oct. 19, 2004) .................. 21, 26 Miscaviage v. IRS, 2 F.3d 366 (11th Cir. 1993) ............................... 14 Moorefield v. U.S. Secret Serv., 611 F.2d 1021 (5th Cir. 1980) ................................ 25 Murphy v. Hunt, 455 U.S. 478 (1982) ............. 38 NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1978) ................. 17, 18, 24, 25, 26, 35, 36 Office of the Capital Collateral Counsel v. Dep't of Justice, 331 F.3d 799 (11th Cir. 2003) .............. 15 Perry v. Block, 684 F.2d 121 (D.C. Cir. 1982) ................................................. 38 Pope v. United States, 599 F.2d 1383 (5th Cir. 1979) ................................ 20 Pratt v. Webster, 673 F.2d 408 (D.C. Cir. 1982) ............... 12, 19, 20, 22, 25 Roger J. Au & Son, Inc. v. NLRB, 538 F.2d 80 (3d Cir. 1976) ................................. 21 Solar Sources, Inc. v. United States, 142 F.3d 1033 (7th Cir. 1998) .................... 24, 35, 36, 37 S. Bell Tel. & Tel. Co. v. EEOC, 1969 WL 88 (E.D. La. Feb. 23, 1969) ....................... 23 Tijerina v. Walters, 821 F.2d 789 (D.C. Cir. 1987) ................................ 38 Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 973).... 37 Watkins Motor Lines, Inc. v. Dominguez & EEOC, 2006 WL 1410166, No. 05-13744 (11th Cir. May 23, 2006)..... 2, 6, 30 Watkins Motor Lines, Inc. v. Dominguez & EEOC ("Watkins I"), No. 8:05-CV-341 (M.D. Fla.) ....... 1, 2, 6, 32 Watkins Motor Lines, Inc. v. EEOC ("Watkins III"), No. 8:06-CV-383 (M.D. Fla.) ...... 3, 4, 11, 33 STATUTES, ACTS, and REGULATIONS Freedom of Information Act, 5 U.S.C. § 552 ....... 2 5 U.S.C. § 552(b)(7)(A) .......... 2, 7, 12, 17 5 U.S.C. § 555(c) ............................... 13 5 U.S.C. § 555(e) ............................... 13 29 U.S.C. § 161 ............................... 2, 7 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ................................. 4 42 U.S.C. § 2000e-5(b) ..................... 33 Freedom of Information Reform Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207 (1986) .......... 18, 26 Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, 86 Stat. 103 (1972)................. 23 29 C.F.R. § 1601.10 ..........................11, 27 29 C.F.R. § 1610.15(a)(3) ........................ 8 29 C.F.R. § 1610.18(e) .......................... 34 29 C.F.R. § 1610.19(a) ...........................33 MISCELLANEOUS http://www.eeoc.gov/employers/surveys.html ...... 19 Donald R. Livingston, EEOC Litigation & Charge Resolution (BNA Books 2005)............................ 28 STATEMENT OF JURISDICTION The Commission adopts the statement of jurisdiction in Appellant's brief. STATEMENT OF THE ISSUES 1. Whether the district court properly held that materials contained in the files of the EEOC's ongoing investigation may be withheld under exemption 7(A) of FOIA. 2. Whether Watkins' claim in Count II is moot because Watkins has already received the documents it was seeking in Count II. STATEMENT OF THE CASE A. Course of Proceedings and Disposition Below This case is one of three actions that plaintiff Watkins Motor Lines, Inc. ("Watkins"), has brought against the Equal Employment Opportunity Commission ("Commission" or "EEOC") in the United States District Court for the Middle District of Florida. In all three actions, Watkins has sought a judicial ruling that would require the Commission to terminate its investigation into a charge alleging race discrimination by Watkins prior to the completion of the Commission's investigation. In the first action, Watkins Motor Lines, Inc. v. Dominguez & EEOC ("Watkins I"), No. 8:05-CV-341 (M.D. Fla.), filed on February 22, 2005, Watkins sought to compel the Commission to accept its settlement offer and cease its investigation. The district court granted the Commission's motion to dismiss in an order dated June 9, 2005. Watkins I, No. 8:05-CV-341, R.44. Watkins appealed and this Court affirmed "based on the well-reasoned opinion of the district court." Watkins Motor Lines, Inc. v. Dominguez & EEOC, 2006 WL 1410166, No. 05-13744 (11th Cir. May 23, 2006). Watkins filed this action ("Watkins II") on June 7, 2005, seeking declaratory and injunctive relief under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and under 29 U.S.C. § 161 and implementing regulations. R.1. Watkins also sought a writ of mandamus to compel the Commission to produce its entire investigative file. The Commission answered that the documents contained within the file of an ongoing investigation are exempt under FOIA, 5 U.S.C. § 552(b)(7)(A). R.6 at 6. After Watkins served 22 interrogatories and a deposition notice on the EEOC asking the EEOC to provide detailed information about its ongoing investigation into Watkins' allegedly discriminatory practices, the EEOC moved to preclude discovery on the ground that such wide-ranging discovery is generally inappropriate in FOIA cases. R.16. A magistrate granted the Commission's motion in an order dated November 29, 2005. R.23. Watkins objected to the magistrate's order. The Commission moved for summary judgment. R.26. In an order dated February 10, 2006, the district court affirmed the magistrate's decision that discovery was not appropriate given the information the Commission had supplied about withheld documents. R.43. The district court, addressing the FOIA claim, also held that the copies of documents Watkins had provided the Commission were not exempt, and it ordered their disclosure. It then ruled that Watkins' alternative basis for seeking the copies was moot. Finally, the court ruled that mandamus relief was not warranted because Watkins had an adequate remedy for the document copies under FOIA and because Watkins lacked a statutory basis to compel the EEOC to provide a statement of the grounds for denying settlement while in the middle of an investigation. On March 8, 2006, while the district court was awaiting further briefing on the FOIA claim, Watkins filed a separate, third action in district court. See Watkins Motor Lines, Inc. v. EEOC ("Watkins III"), No. 8:06-CV-383 (M.D. Fla.). In this third action, Watkins sought to compel the Commission to approve a request for withdrawal of the administrative charge and "to terminate its investigation of Watkins" pursuant to the charge. The next day – March 9, 2006 – Watkins filed its opposition to summary judgment in Watkins II (this FOIA case), arguing, inter alia, that the district court here should rule on the charge withdrawal issue or should stay its proceedings until the court in Watkins III had done so. R.49. The district court issued a second order on April 7, 2006, granting summary judgment to the Commission on the remainder of the FOIA claim. R.57. Judgment was entered on April 10, 2006. R.58. Watkins filed a notice of appeal on May 22, 2006. R.59. On August 9, 2006, Watkins voluntarily dismissed its third pending action, Watkins III, on the ground that the Eleventh Circuit might, in this appeal, reach the merits of the question before the district court in the third action. Watkins III, No. 8:06-CV-383, R.17. Watkins noted it was preserving its ability to re-file this action "should [Watkins] deem it appropriate to do so." Id. B. Statement of Facts On September 14, 2004, Lyndon Jackson filed a charge of discrimination with the Commission's Chicago district office. R.57 at 2. In his charge, Jackson alleged that he had applied for the position of part-time Freight Handler at Watkins' Schaumburg, Illinois facility and that Watkins' rejection of his application because he had a prior conviction constituted race discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The Commission began an investigation of the discrimination charge to ascertain whether there was any merit to the allegation. In December 2004, the Commission conducted an on-site inspection of documents related to the alleged discrimination at the Schaumburg facility and received two boxes of documents. R.1 ¶ 12. At the time, Watkins told the EEOC investigator that the two boxes comprised half of the applications and other employment-related documents needed for her investigation. R.1, Exh. C at 2. On January 20, 2005, the Commission requested that Watkins provide the additional documents relevant to the investigation – namely, applicant records for the Freight-Handler position for a four-year period. Watkins then informed the EEOC investigator that, in fact, there were another 38 boxes of documents that related to the Commission's investigation. R.1, Exh. C at 2. Watkins refused to produce the documents that the investigator needed to complete her investigation, however. Instead Watkins indicated that, rather than wait for the conclusion of the investigation, it believed the Commission should immediately undertake to settle the matter. R.1, Exh. B. By letter dated February 16, 2005, the EEOC investigator reiterated her request for the missing 38 boxes of documents she had requested, and emphasized that the EEOC is a "neutral agency" with a "responsibility . . . to investigate allegations of discrimination." R.1, Exh. C at 2. The investigator also responded to Watkins' demands that the Commission undertake to settle the matter, by pointing out that she would need to continue with her investigation to recognize what might be a "reasonable and appropriate settlement offer." R.1, Exh. C. at 2. As she put it: If there is a violation, are punitive damages appropriate? If so, how large an award would be necessary to deter future violations by Respondent? If Respondent is engaging in activities which violate Title VII, what type of injunctive relief would ensure compliance in the future? But of course the first question I need to answer is this – is there a violation? R.1, Exh. C at 1 (emphasis added). The next day, Watkins nevertheless sent the Commission a draft settlement proposal in which Watkins would agree to adopt and implement a written policy regarding conviction records. The proposed agreement did not admit liability under Title VII, did not provide relief for individuals, required the EEOC "to terminate the investigation which it has begun, including . . . its pending January 20, 2005[,] request for information," and required the EEOC to agree not to bring a civil action under Title VII. R.1, Exh. D. The Commission declined the proposed settlement agreement as unacceptable on February 22, 2005. R.1, Exh. E. That same day, Watkins filed Watkins I challenging the Commission's decision not to accept the settlement offer while the investigation was pending. Watkins I, No. 8:05-CV-341. Two days later, on February 24, 2005, Watkins sent the Chicago district office's Regional Attorney a letter requesting that the Commission provide Watkins with copies of the Commission's entire investigative file, including "the results of any investigation and any notes and records in the Commission's possession." R.1, Exh. C. The Regional Attorney denied the request under FOIA exemption 7(A), designed to protect "‘records or information compiled for law enforcement purposes.'" R.1, Exh. G at 1 (quoting 5 U.S.C. § 552(b)(7)(A)). The Regional Attorney noted his determination was affected by the time at which the request was made: during an on- going investigation, rather than when there was a "case in court on the merits." R.1, Exh. G at 2. Watkins appealed to the Commission's Office of Legal Counsel. R.1, Exh. I. On May 11, 2005, the Commission affirmed the decision not to disclose "information contained in [an] open charge file" because it could interfere with the Commission's ongoing law enforcement proceedings. R.1, Exh. J (Comments Page). On June 7, 2005, Watkins filed Watkins II – the instant three-count action. R.1. The first count sought the contents of the Commission's investigative file under FOIA; the second count, citing 29 U.S.C. § 161 and NLRB's "implementing rules and policies," sought copies of documents Watkins had provided the Commission; and the third count sought a writ of mandamus compelling the Commission to provide the documents requested under FOIA and to provide "an adequate statement of the grounds for denial" of the documents and the proposed settlement. R.1 ¶¶ 26-40. The Commission moved for summary judgment and to dismiss Watkins' complaint, and it attached a detailed affidavit from EEOC Assistant Legal Counsel/FOIA Programs, Stephanie Garner. R.27, Exh. A. Garner, who reviewed the investigative charge file, stated in the affidavit that she had identified six categories of documents, five of which were withheld. R.27, Exh. A ¶ 11. She then identified the possible harms that could result from disclosure of the documents in these categories. Four categories remain at issue in this appeal. These four categories of documents that Garner identified from the investigative file are: 1. Administrative documents reflecting tracking of the charge and the investigation - This category contains documents and notes that reflect the status of the charge and the progress of the investigation, and what actions have been taken, or will be taken, in processing and investigating the charge. 2. Correspondence and documents between the Commission and charging party regarding the charge and notes relating to the correspondence - This category contains correspondence between EEOC employees and the charging party, and any information the charging party has provided to EEOC in support of or in relation to his charge of discrimination. 3. Notes from witness interviews - This category contains notes compiled by EEOC personnel in connection with interviews of witnesses or potential witnesses. 4. Internal EEOC documents prepared by investigators, attorneys, and the office Director comprising selective facts, analysis of the information collected during the investigation, and recommendations on how to proceed with the investigation and respond to [Watkins'] persistent demands for action or information - This category consists of communications among Commission employees, investigator notes, and other internal documents reflecting analysis of the charge and recommendations and discussions on how best to proceed with the investigation. R.27, Exh. A ¶ 11. For each category of documents, Garner then identified the specific harms that could ensue from their premature release. The harms identified from disclosing information while the investigation was still underway included: • hampering the free flow of ideas between EEOC employees and supervisors and discouraging employees from properly documenting the file • giving Watkins insight into the progress, scope, and direction of the agency's investigation, thus hindering the EEOC's ability to shape and control the investigation • disclosing issues, information, and potential sources of information that EEOC has not revealed to Watkins; Watkins might be able to take preventive actions that might impede EEOC's ability to pursue that information or those sources • giving Watkins a preview of the EEOC's investigative strategy, and so enabling Watkins to prepare defenses or strategy before the EEOC has determined the reliability of the information; this might make it more difficult to uncover or substantiate violations of the law • creating a potential chilling effect upon witnesses or potential witnesses, thus drying up sources of information • giving the target of the investigation the opportunity to falsify or dispose of records in an attempt to avoid a finding that the target violated federal law • making it more difficult to uncover or substantiate law violations by revealing which issues EEOC considers important; which issues are troublesome; evaluations of facts, issues, and Watkins' actions; and strategies for meeting Watkins' persistent attempts to disrupt the investigation R.27, Exh. A ¶ 11. During the same time that the FOIA request was proceeding through the Commission, it became increasingly apparent that Watkins was not going to provide the documents the EEOC investigator felt she needed to determine whether there was any merit to the discrimination charge. The Commission's Chicago district office therefore issued an administrative subpoena for the requisite information. The subpoena, dated April 8, 2005, requested applicant data and a range of information that pertained to Watkins' explanation for its policy not to hire applicants with convictions. R.1, Exh. H. On April 19, 2005, Watkins petitioned the Commission as a whole to revoke or modify the subpoena. The Commission had not issued a determination on the subpoena petition as of the date of its FOIA determination – May 11, 2005. In January 2006, while the FOIA matter was still pending in the district court, charging party Lyndon Jackson submitted to the EEOC a request to withdraw his charge. R.38, Exh. 1. Pursuant to EEOC regulations, which state that the Commission will consent to withdrawal of a charge only where the withdrawal "will not defeat the purposes of title VII," 29 C.F.R. § 1601.10, the Commission exercised its discretion and, on February 13, 2006, denied Jackson's request to withdraw his charge. R.46, Exh. A. That exercise of the Commission's discretion prompted Watkins' third lawsuit – Watkins III, No. 8:06-CV-383 (M.D. Fla.) C. District Court Decisions The district court issued two successive decisions in this case. The first decision affirmed a ruling by the Magistrate Judge, who had considered the Commission's motion to preclude discovery. The Commission had filed the motion after Watkins served 22 interrogatories and a deposition notice on the Commission asking it to provide detailed information about its ongoing investigation into Watkins' allegedly discriminatory practices. The Magistrate, citing the Commission's "controlling and persuasive authority," agreed that such discovery was inappropriate in this FOIA litigation. R.23 at 7-8. The district court affirmed the Magistrate Judge's ruling on February 10, 2006. R.43. The court noted that discovery in FOIA cases is "limited" and is generally "‘unnecessary if the agency's submissions are adequate on their face.'" R.43 at 8 (quoting Carney v. U.S. Dep't of Justice, 19 F.3d 807, 812 (2d Cir. 1994)). The court then carefully considered the EEOC's submissions, notably the Garner affidavit, and concluded that they were adequate, and held the detailed discovery Watkins sought was unnecessary. R.43 at 9-13, 16. The court also considered whether discovery was necessary to establish the substantive components of the 7(A) exemption – namely, whether the records were compiled for a "law enforcement purpose" and whether disclosure could reasonably be expected to "interfere with enforcement proceedings." R.43 at 13-15 (analyzing 5 U.S.C. § 552(b)(7)(A)). The court held that discovery was unnecessary on the question of "law enforcement purpose" because the records were undisputedly compiled while the EEOC was investigating an alleged violation of federal law, thus making them "compiled for law enforcement purposes" as a matter of law. R.43 at 14 (citing, inter alia, Pratt v. Webster, 673 F.2d 408, 420 (D.C. Cir. 1982)). The court also held that since the Commission's investigation of the discrimination charge "may lead to the EEOC filing suit in a district court," discovery was unnecessary to establish that the withheld documents relate to a prospective enforcement proceeding. R.43 at 15. Addressing the substantive claims made by Watkins, the district court held that one category of documents – the copies of documents Watkins earlier provided the Commission – should be disclosed under FOIA. R.43 at 17-19. The court's disclosure order thus rendered moot Watkins' argument that it was entitled to the same documents under 5 U.S.C. § 555(c). R.43 at 19-20. The court deferred ruling on the remaining document categories under FOIA until it received further briefing. Finally, the court rejected Watkins' mandamus petition, noting that FOIA provided an adequate remedy for obtaining the documents Watkins requested. R.43 at 20-21. The court also rejected Watkins' demand that the court force the Commission to provide a statement for the grounds for its denial of Watkins' settlement proposal. The court held that Watkins' purported statutory authority, 5 U.S.C. § 555(e), in fact was inapplicable because an EEOC investigation is not an "agency proceeding" as defined by that statutory provision. R.43 at 21-22. On April 7, 2006, the district court granted summary judgment to the Commission on the remaining four categories of documents, holding that they fell within exemption 7(A) of FOIA. R.57. The court first reiterated the evidence and legal authority for its conclusion that the withheld documents were compiled for a law enforcement purpose. R.57 at 5-6. The court then rejected Watkins' arguments that there was no prospective law enforcement proceeding. The court held that the Commission acted within its discretionary authority to deny the withdrawal of the charge, thus keeping extant the Commission's investigation, and the court held as a factual matter that the Commission's investigation was ongoing. R.57 at 7-8. As to possible interference with the enforcement proceeding, the court cited considerable Supreme Court and other authority supporting a conclusion that disclosure could reasonably be expected to interfere with enforcement proceedings. R.57 at 8-11. Finally, the court examined again each particular category of documents and the potential harm identified in the Garner affidavit. R.57 at 11-17. The court concluded that the harm described for each was sufficient to show that disclosure of the documents in each category could reasonably be expected to interfere with enforcement proceedings. Id. Watkins appealed from the judgment of the district court. STANDARD OF REVIEW In reviewing "a district court's determination under the FOIA, [this Court] must first determine whether the lower court had an adequate factual basis for its determination." Chivlis v. Sec. & Exch. Comm'n, 673 F.2d 1205, 1210 (11th Cir. 1982). "Assuming an adequate factual basis, we must ascertain whether the lower court's determination was clearly erroneous." Id.; see also Miscaviage v. IRS, 2 F.3d 366, 367 (11th Cir. 1993) ("reviewing determinations by the district court under FOIA, we must decide whether the district court had an adequate factual basis to render a decision that is not clearly erroneous"). Legal questions as to the applicability of a FOIA exemption are reviewed de novo. Office of the Capital Collateral Counsel v. Dep't of Justice, 331 F.3d 799, 802 (11th Cir. 2003). SUMMARY OF ARGUMENT Watkins' brief argues that this case is about "what the government is up to." Watkins Br. at 23. In fact, the Commission has been quite straightforward with Watkins about what it is "up to:" the Commission is investigating – or attempting to investigate – Watkins' hiring practices to determine whether there is any merit to the charge of race discrimination. In conducting this ongoing investigation, the Commission has received or generated a number of documents ranging from notes on the progress of the investigation, notes on what actions the Commission plans to take in the future, correspondence with the charging party, notes from witness interviews, and internal memoranda analyzing the merits of the charge of discrimination. Watkins seeks a ruling from this Court that would require the EEOC to turn over the entire contents of its investigative file. Watkins has argued that, as a matter of law, exemption 7(A) of FOIA can never apply to EEOC investigative materials. Watkins misunderstands the purpose of that exemption, which Congress has carefully crafted to ensure that law enforcement agencies such as the EEOC not be hindered in their investigations or placed at a disadvantage when they present their case in court. Indeed, exemption 7(A) reflects Congress' concern about the harm that could ensue from the premature release of the investigative materials. The district court thoroughly analyzed the categories of information sought and the harm that could ensue from the information's release while the Commission was in the middle of an investigation. The court's conclusion that the information fell within the 7(A) exemption should be affirmed by this Court. ARGUMENT I. The district court properly held that materials contained in the files of the EEOC's ongoing investigation were properly withheld under exemption 7(A) of FOIA. Under exemption 7(A) of FOIA, an agency may withhold: records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information could reasonably be expected to interfere with enforcement proceedings. . . . 5 U.S.C. § 552(b)(7)(A). In enacting this exemption, "Congress recognized that law enforcement agencies had legitimate needs to keep certain records confidential, lest the agencies be hindered in their investigations or placed at a disadvantage when it came time to present their case." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 224 (1978). Foremost among the purposes of the exemption, the Supreme Court has observed, was "to prevent ‘harm [to] the Government's case in court' . . . by not allowing litigants ‘earlier or greater access' to agency investigatory files than they otherwise would have." Robbins Tire, 437 U.S. at 224-25 (quoting FOIA legislative history). Moreover, while it is true that "the fundamental principle of public access to Government documents . . . animates the FOIA," it is also true that FOIA's "statutory exemptions are intended to have meaningful reach and application." John Doe Agency v. John Doe Corp., 493 U.S. 146, 151-52 (1989). In holding that the four categories of materials in the Commission's investigatory file fell within exemption 7(A), the district court ruled in a manner fully consistent with the language and purpose of the exemption. As the Robbins Tire Court put it, "the release of information in investigatory files prior to the completion of an actual, contemplated enforcement proceeding was precisely the kind of interference that Congress . . . want[ed] to protect against." Robbins Tire, 437 U.S. at 232; see also Mapother v. Dep't of Justice, 3 F.3d 1533, 1541 (D.C. Cir. 1993) (purpose of exemption is "to avoid prejudice to a prospective enforcement action"). Watkins would have this Court hold otherwise. Watkins broadly argues that materials contained within the files of an ongoing EEOC investigation may never be withheld under exemption 7(A). Watkins' far-reaching arguments are at odds not only with the language and purpose of the exemption, but also with the considerable case law analyzed by the district court. Indeed, Watkins fails to cite to a single case holding, as Watkins would have this Court hold, that EEOC investigative materials fall outside the 7(A) exemption of FOIA as a matter of law. The district court in this case examined the applicable case law and carefully assessed the information provided in the Garner affidavit. Its ruling that four categories of documents were exempt under FOIA therefore should be affirmed. A. The documents compiled during the EEOC's investigation of alleged discrimination by an employer were compiled for law enforcement purposes. The seminal case addressing the presence or absence of a "law enforcement purpose" is Pratt v. Webster, 673 F.2d 408 (D.C. Cir. 1982). In Pratt, the court noted that for a "mixed-function agency," there is a distinction between "general agency oversight (including program monitoring)" and "agency investigations specifically directed at allegedly illegal activity." Pratt, 673 F.2d at 419. The former activities fall outside the 7(A) exemption. For the EEOC, a mixed-function agency, the aggregate workforce data the EEOC assembles from its EEO-1 surveys (see, e.g., http://www.eeoc.gov/employers/surveys.html), for example, thus would not be exempt from FOIA disclosure. But under Pratt, the materials collected by the EEOC during the course of an ongoing investigation are entitled to a 7(A) exemption from disclosure. Pratt put into place a two-part test for evaluating whether materials were gathered for a law enforcement purpose. First, "the agency's investigatory activities that give rise to the documents sought must be related to the enforcement of federal laws." Pratt, 673 F.2d at 420. To this end, the agency "should be able to identify a particular individual or a particular incident as the object of its investigation and the connection between that individual or incident and a possible . . . violation of federal law." Id. Second, "the nexus between the investigation and one of the agency's law enforcement duties must be based on information sufficient to support at least ‘a colorable claim' of its rationality." Id at 421. Pratt also emphasized that the exemption 7(A) law enforcement purpose "includes both civil and criminal investigations and proceedings within its scope." Id. at 420 n.32; see also Pope v. United States, 599 F.2d 1383, 1386 (5th Cir. 1979) (exemption applies to civil investigations and proceedings). The EEOC investigation – prompted by a specific charge of unlawful discrimination filed against Watkins by an individual – plainly meets the Pratt test. See, e.g., Davin v. U.S. Dep't of Justice, 60 F.3d 1043, 1054 n.3 & 1056 (3d Cir. 1995) (adopting the Pratt test and noting that "agencies that have some law enforcement duties, such as the Equal Employment Opportunity Commission in investigating violations of Title VII, . . . may . . . justify withholding information under Exemption 7"); J.P. Stevens & Co. v. Perry, 710 F.2d 136, 141-43 (4th Cir. 1983) (EEOC investigative materials may be withheld under exemption 7(A)); Martinez v. EEOC, 2004 WL 2359895, at *2 (W.D. Tex. Oct. 19, 2004) (EEOC investigation into charge of discrimination resulted in information compiled for law enforcement purpose); cf. Arenberg v. Drug Enforcement Ag'y, 849 F.2d 579 (11th Cir. 1988) (discussing Pratt test). Watkins cites to the Third Circuit's decision in Committee on Masonic Homes v. NLRB, 556 F.2d 214 (3d Cir.1977), in support of its argument that the EEOC investigation cannot satisfy the law enforcement purpose requirement. Masonic Homes does not support Watkins' argument, however. Masonic Homes involved records compiled by the NLRB – namely, union authorization cards – in a case where there was no underlying unfair labor practice complaint. The Masonic Homes court specifically contrasted the NLRB's record-compiling actions in that case with its actions in compiling union authorization cards in a case where "the employer was the target of a pending unfair labor practice complaint." Masonic Homes, 556 F.2d at 218 (citing Roger J. Au & Son, Inc. v. NLRB, 538 F.2d 80 (3d Cir. 1976)). In any event, even if Masonic Homes could somehow be read as requiring a pending judicial proceeding, the Third Circuit has since made quite clear that exemption 7(A) in fact contains no such requirement. See Davin, 60 F.3d at 1055 (noting that "the precedential force of Masonic Homes can be questioned" and pointing out that it is not necessary for an investigation to lead to an enforcement proceeding to satisfy the law enforcement purpose criterion). Watkins next argues that prior to 1972 "the EEOC had no enforcement authority whatsoever," but instead had to refer matters to the Attorney General for enforcement through a civil action, and therefore that its investigations are meant only to achieve voluntary compliance and thus have no law enforcement purpose. Watkins Br. at 27. This suggested limitation on the meaning of law enforcement is at odds with the test used by every court to identify what constitutes a law enforcement purpose. As discussed above, "the agency's investigatory activities that give rise to the documents sought must be related to the enforcement of federal laws." Pratt, 673 F.2d at 420. An EEOC investigation, a determination that there is reasonable cause to believe discrimination has occurred, and an effort to conciliate with the employer are necessary precursors to a Title VII Government enforcement action. Whether the Title VII enforcement action is brought by the Attorney General – as was true for pattern or practice cases prior to 1972 – or by the EEOC makes no difference to the "law enforcement purpose" test. In either case, the EEOC's investigation of a discrimination charge plainly relates to the enforcement of federal laws. It is for this reason that, even prior to 1972, courts held that the EEOC investigatory files were gathered for "law enforcement purposes" and hence need not be disclosed under exemption 7 of FOIA. See, e.g. S. Bell Tel. & Tel. Co. v. EEOC, 1969 WL 88, at *2 (E.D. La. Feb. 23, 1969) ("the information sought here is the type of information which falls under the exception outlined in § 552(b)(7)"). In any event, even if Watkins were correct that EEOC's lack of authority to file lawsuits before 1972 meant that pre-1972 EEOC investigations were not conducted for "law enforcement purposes," EEOC now has the authority to file lawsuits, as Watkins itself acknowledges. Watkins Br. at 28 (citing Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, 86 Stat. 103 (1972)). Watkins' strenuous assertion that, in 1964, EEOC "was not created as a law enforcement agency at all," Watkins Br. at 27, thus has no bearing on how the agency and its law enforcement activities have been viewed after the 1972 Act. As this Court has recognized, "‘[t]he EEOC's primary role is that of a law enforcement agency.'" EEOC v. Pemco Aeroplex, Inc., 383 F.3d 1280, 1292 (11th Cir. 2004) (quoting In re Bemis Co., 279 F.3d 419, 421 (7th Cir. 2002)); see also EEOC v. Waffle House, Inc., 534 U.S. 279, 285-88 (2002) (discussing EEOC's "enforcement role" under Title VII and other statutes). B. Release of the information contained within the investigative file could reasonably be expected to interfere with enforcement proceedings. The district court, after examining the Garner affidavit, discussed in detail how disclosure of each category of documents could reasonably be expected to interfere with enforcement proceedings. R.57 at 11-17. The district court noted that numerous courts in cases with factually similar contexts have recognized that the potential harms identified by the EEOC support withholding information contained within an investigative file. See R.57 at 11-17 (citing Robbins Tire, 437 U.S. at 241 (disclosure of witness statements might allow employer to construct defenses); J.P. Stevens, 710 F.2d at 142-43 (disclosure of EEOC investigative file may create chilling effect on potential witnesses, hamper free flow of ideas between EEOC employees, and hinder ability of EEOC to shape investigation); Solar Sources, Inc. v. United States, 142 F.3d 1033, 1039 (7th Cir. 1998) (material exempt because it would reveal nature and scope of government investigation)). Watkins asserts that the district court erred. Watkins argues first that the EEOC can never meet this exemption 7(A) requirement because the prospect of an EEOC enforcement proceeding is "too attenuated" because it depends on a determination of cause to believe discrimination has occurred, a failure of conciliation, and a decision by the Commission to bring suit. Watkins Br. at 31. Watkins' argument on this point makes little sense. Good faith investigations by a government agency do not automatically lead to enforcement proceedings. To the contrary, the very purpose of an investigation, and of this investigation in particular, is to ascertain whether an enforcement proceeding might be appropriate. As the EEOC investigator in this case put it: "the first question I need to answer is this – is there a violation?" R.1 Exh. C at 1. It is for this reason that, as the Pratt court stated, it is not necessary "for the investigation to lead to a criminal prosecution or other enforcement proceeding." Pratt, 673 F.2d at 421. The purpose of the "enforcement proceedings" requirement is not to require that investigative materials be disclosed unless the government agency can guarantee that its investigation will lead to an enforcement action. As the Supreme Court explained in Robbins Tire, the purpose of the statutory language is to ensure that materials sitting in a dead investigative file will not be withheld as a matter of course. See Robbins Tire, 437 U.S. at 230 (Congress wished "to make clear that the Exemption did not endlessly protect material simply because it was in an investigatory file"). In other words, "‘when the investigation is all over and the purpose and point of it has expired, it would no longer be an interference with enforcement proceedings and there ought to be disclosure.'" Id. at 232 (citation omitted); see also Moorefield v. U.S. Secret Serv., 611 F.2d 1021, 1024 (5th Cir. 1980) (exemption 7 language was amended in 1974 "mainly to overrule judicial decisions that prohibited disclosure of investigatory files in ‘closed' cases" ). Of course, the EEOC's investigation in this case is not over and, as Robbins Tire emphasized, "the release of information in investigatory files prior to the completion of an actual, contemplated enforcement proceeding was precisely the kind of interference that Congress continued to want to protect against." Robbins Tire, 437 U.S. at 232. Watkins' argument is also undermined by the changes Congress made to the language of the 7(A) exemption. In the Freedom of Information Reform Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207 (1986), Congress eliminated the requirement that an agency show disclosure would interfere with enforcement proceedings, and instead required an agency to show only that disclosure "could reasonably be expected to interfere." See Curran, 813 F.2d at 474 n.1 (explaining that language "has been broadened"). Finally, Watkins' argument that the EEOC can never meet the "enforcement proceedings" requirement is in tension with the decisions of all the courts that have determined that the EEOC may withhold information under exemption 7(A). See, e.g., Davin, 60 F.3d at 1054 n.3; J.P. Stevens & Co. v. Perry, 710 F.2d at 141-43; Martinez, 2004 WL 2359895, at *2. Watkins next argues that there is no prospective enforcement action because the EEOC should have consented to the withdrawal of the discrimination charge, which would have terminated the investigation and all possible enforcement proceedings. Watkins Br. at 34-38. Watkins argues that the Commission's procedural regulation requiring Commission consent is invalid or, alternatively, that the refusal to give consent in this case was an abuse of discretion. The district court rejected Watkins' argument, holding that the Commission may deny its consent to withdrawal of a charge. R.57 at 7. The district court's ruling is consistent with Title VII and with the decision of every court that has considered the propriety of the Commission's regulation. The Commission's regulation, 29 C.F.R. § 1601.10, states: "A charge filed by or on behalf of a person claiming to be aggrieved may be withdrawn . . . only with the consent of the Commission . . . where the withdrawal of the charge will not defeat the purposes of title VII . . . ." Watkins points out that Title VII nowhere provides for the withdrawal of a charge. Watkins Br. at 35. On this point Watkins is correct. The Commission therefore could have issued a regulation prohibiting absolutely the withdrawal of a charge. Instead the Commission, after a period of notice and comment, adopted a regulation permitting charge withdrawal in circumstances that will not defeat the purposes of Title VII. Because the Commission's regulation strikes the appropriate balance between the individual's wishes and the overall purposes of Title VII, every court to consider the question – including this Court – has upheld the regulation. See, e.g., EEOC v. Huttig Sash & Door Co., 511 F.2d 453, 455 & n.3 (5th Cir. 1975) ("Once a charge is filed by an individual, it may be withdrawn only with the consent of the EEOC."); EEOC v. Frank's Nursery & Crafts, Inc., 177 F.3d 448, 456 (6th Cir. 1999); EEOC v. Harvey L. Walner & Assocs., 91 F.3d 963, 969 (7th Cir. 1996); EEOC v. Citicorp Diners Club, Inc., 985 F.2d 1036, 1038-40 & n.2 (10th Cir. 1993); EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539, 1544 (9th Cir. 1987); EEOC v. Morgan Stanley & Co., 132 F. Supp. 2d 146, 152-53 (S.D.N.Y. 2000); see also Donald R. Livingston, EEOC Litigation & Charge Resolution 362 (BNA Books 2005) (withdrawal of a charge "is not effective until approved by the EEOC"). The Morgan Stanley court, in upholding the Commission's regulation, highlighted circumstances in which the purposes of Title VII could be defeated: "if the EEOC were foreclosed from pursuing investigations whenever the charging party whose charge occasioned the inquiry wished to settle with his or her employer, employers would be able to forestall investigations into their employment practices by ‘buying off' any victim who had the temerity to complain." 132 F. Supp. 2d at 152-53; see also Livingston, EEOC Litigation 363-64 (discussing factors EEOC will consider in making withdrawal determination, including "the possibility that there may be other aggrieved individuals" or suspicion by the EEOC of coercion). Watkins attacks the reasoning of Morgan Stanley by pointing out that Title VII authorizes EEOC Commissioners to file charges themselves, and argues that withdrawal therefore would never defeat the purposes of Title VII. Watkins Br. at 38. Watkins fails to understand the range of circumstances that factor into a withdrawal decision. In some cases, a Commissioner's charge could substitute for the charge of an individual, and the Commission therefore could consent to the charge withdrawal. In other cases, however, such as those in which the 300-day period for filing a charge has elapsed, withdrawal would insulate discriminatory practices from challenge. Allowing the Commission to assess the purposes of Title VII in consenting to withdrawal is therefore critical to enforcement of the statute. Watkins next contends that the Commission abused its discretion in denying consent in this case. Watkins Br. at 39-40. Watkins does not explain precisely how the Commission abused its discretion, but seems to suggest that there could be no possible reason for the Commission to continue an investigation if Jackson had reached a settlement with Watkins. Watkins Br. at 39. If this is Watkins' argument, it cannot be reconciled with controlling Supreme Court and Eleventh Circuit precedent. The Supreme Court has recognized that the Commission's authority to bring suit to challenge discriminatory practices is not "merely derivative" of the charging party's, and that the "EEOC does not stand in the employee's shoes." Waffle House, 534 U.S. at 297; see also Pemco Aeroplex, 383 F.3d 1292 (discussing Waffle House). Even if the charging party accepts a monetary settlement from the employer, the Court recognized, the Commission would still be entitled to challenge discriminatory practices and seek appropriate remedies, though "any recovery by the EEOC would be limited accordingly." Waffle House, 534 U.S. at 296. Furthermore, the EEOC need not confine its investigation to the narrow circumstances presented in the initial charge because "EEOC enforcement actions are not limited to the claims presented by the charging parties. Any violations that the EEOC ascertains in the course of a reasonable investigation of the charging party's complaint are actionable." Gen. Tel. Co. of the Northwest v. EEOC, 446 U.S. 316, 331 (1980); see also Pemco Aeroplex, 383 F.3d at 1293 (even after termination of charging party's private suit, "‘EEOC can bring suit predicated on, but not limited to, the same charge'") (quoting Huttig Sash, 511 F.2d at 454). Thus, there is no basis for finding that the Commission abused its discretion. Watkins contends there is no prospective enforcement action because "the EEOC's own inactivity with respect to the investigation" raises an inference that no enforcement proceeding is contemplated. Watkins Br. at 35. Watkins made a similar argument regarding the status of the Commission's investigation in its last appeal to this Court, urging this Court to overturn "the district court's factual finding that the EEOC's investigation was ongoing. . . ." Watkins Br. in No. 05-13744 (11th Cir.) at 37. This Court rejected Watkins' arguments, however, and instead affirmed "based on the well-reasoned opinion of the district court." Watkins Motor Lines, 2006 WL 1410166. When Watkins made the same argument to the district court in this case, the court again rejected it, finding that the undisputed evidence in this case demonstrated that the Commission's investigation into Jackson's charge is ongoing. R.57 at 8. Because the court's finding is correct, this Court again should affirm that finding. In challenging the district court's finding, Watkins does not point to any evidence the court overlooked. Instead Watkins emphasizes supposed inaction by the EEOC in the time period after the EEOC made its determination on the FOIA request, and after the district court decision upholding, in relevant part, that FOIA determination. See Watkins Br. at 41 (noting that EEOC had not made a determination on petition to revoke or modify subpoena as of the time Watkins filed its opening brief with this Court). There are numerous flaws – both legal and factual – with Watkins' contention on this point. First, FOIA judicial review is "an assessment of the agency decision to withhold a document." Bonner v. U.S. Dep't of State, 928 F.2d 1148, 1152 (D.C. Cir. 1991). Thus as a matter of law, the relevant time period for assessing the propriety of an agency's FOIA determination is not the moment at which a FOIA plaintiff filed its brief in the court of appeals, or even the time at which the district court rendered its decision. Rather, as Bonner explained, a reviewing court necessarily limits the scope of its inquiry to "an appropriate time frame," and in the FOIA context that time frame is "the time the determination to withhold is made." Id.; cf. John Doe Agency, 493 U.S. at 476-77 & n.6 (critical inquiry is whether documents met requirements for exemption 7 at the time when the Government invoked the exemption). To hold otherwise and require an agency to "adjust or modify its FOIA responses based on post-response occurrences" could "create an endless cycle of judicially mandated reprocessing." Bonner, 928 F.2d at 1152. The critical question therefore is whether the EEOC, in May 2005, properly denied Watkins' FOIA request. In any event, as a factual matter, the Commission repeatedly informed Watkins both before May 2005 and after that date that its investigation is ongoing. Watkins' assertion to the contrary, in particular its assertion that EEOC had been inactive for sixteen months, cannot be reconciled with the record. It should have been apparent to Watkins from the numerous filings and other actions EEOC undertook to oppose Watkins' attempt to force the EEOC to halt its investigation that the investigation was not dead. During the time when the Commission was considering the petition to modify or revoke the subpoena (filed in April 2005), the Commission: • moved to dismiss Watkins I and filed two different substantive memoranda opposing Watkins' efforts to terminate its investigation by forcing the Commission to accept a settlement. Watkins I, No. 8:05-CV-341 (M.D. Fla.), R.34, R.35 (4/19/05); R.43 (5/26/05); filed a brief as appellee in the court of appeals, Watkins I, No. 05-13744 (11th Cir.) (11/2/05); and participated in oral argument in this Court (5/17/05); • filed numerous motions and memoranda in Watkins II seeking to prevent disclosure of files from this ongoing investigation for fear such premature disclosure would harm the investigation, and stated specifically that the investigation is still "ongoing." R.15 (10/14/05); R.16 & R.17 (10/31/05); R.25, R.26, R.27, R.27 Exh. A. (12/22/05); R.46 (2/14/06); R.56 (3/23/06); and • filed a motion to dismiss and supporting memorandum in Watkins III, opposing efforts to terminate the investigation by forcing the Commission to accept withdrawal of underlying charge of discrimination. Watkins III, No. 8:06-CV-383 (M.D. Fla.), R.12 & R.13 (7/20/06). Even if the Commission had said nothing to Watkins about the ongoing status of its investigation, however, that silence would not indicate that the Commission had completed its investigation and ceased contemplating an enforcement proceeding. Under Title VII, once the Commission completes its investigation and determines there is not reasonable cause to believe the charge of discrimination, the Commission "shall dismiss the charge and promptly notify the person claiming to be aggrieved and the respondent of its action." 42 U.S.C. § 2000e-5(b) (emphasis added). The Commission's regulations likewise require prompt notification that an investigation has terminated either through a "letter of determination," or, in cases where the Commission does not reach a determination on the merits of the discrimination allegation, through a written notice of dismissal. See 29 C.F.R. § 1601.19(a) (where Commission "completes its investigation" and finds no reasonable cause, the Commission shall issue a letter of determination to all parties to the charge indicating the finding") (emphasis added); 29 C.F.R. § 1601.18(e) ("Written notice of disposition . . . shall be issued to . . . the respondent" where Commission dismisses charge for reasons other than cause determination). The fact that the Commission has not yet issued a letter of determination or notice of dismissal thus establishes that the investigation is not completed. Watkins next takes issue with the district court's findings that, for four categories of documents contained within the EEOC's investigative file, disclosure could reasonably be expected to interfere with enforcement proceedings. Watkins first argues that the district court erred in analyzing documents in categories rather than on a document-by-document basis, and contends that this amounts to a "‘blanket exemption' for all documents in this EEOC charge investigation file." Watkins Br. at 42. Of course, the district court gave no "blanket exemption," as evidenced by its decision that the copies of documents Watkins had given the EEOC were not exempt under FOIA. More significantly though, Watkins' argument to this Court is precisely the argument the Supreme Court considered – and rejected – in Robbins Tire. Robbins Tire involved the same exemption at issue in this case, exemption 7(A), and after considering the language of that exemption the Court concluded that "since subdivision (A) speaks in the plural voice about enforcement proceedings, it appears to contemplate that certain generic determinations might be made." 437 U.S. at 223- 24. The Court then concluded that "Congress did not intend to prevent the federal courts from determining that, with respect to particular kinds of enforcement proceedings, disclosure of particular kinds of investigatory records while a case is pending would generally ‘interfere with enforcement proceedings.'" Id. at 236; see also Solar Sources, Inc. v. United States, 142 F.3d 1033, 1040 (7th Cir. 1998) ("Exemption 7(A) does not require the Government to establish that each particular document would interfere with enforcement proceedings, but rather permits generic exemptions of categories of documents"). Over the years, courts have made determinations that disclosing particular types of investigative materials could reasonably be expected to interfere with enforcement proceedings. In J.P. Stevens, 710 F.2d at 143, for example, the court examined whether certain categories of documents in the EEOC investigative file, similar to the categories in this case, could interfere with EEOC enforcement proceedings. The court concluded that premature disclosure of the documents could "create a ‘chilling effect' on potential witnesses and dry up sources of information . . . , hamper the free flow of ideas between Commission employees . . . , hinder its ability to shape and control investigations, and . . . make more difficult the future investigation of charges and enforcement thereof." Id.; see also Solar Sources, 142 F.3d at 1039 ("Public disclosure of information could result in destruction of evidence, chilling and intimidation of witnesses, and revelation of the scope and nature of the Government's investigation."); Alyeska Pipeline Serv. Co. v. EPA, 856 F.2d 309, 312 (9th Cir. 1988) (premature disclosure of investigation would reveal size, scope, and direction of investigation; allow destruction of evidence; and chill witnesses). Watkins argues that disclosure of these materials really will not harm enforcement proceedings. Watkins Br. at 44-48. Watkins' assertion flies in the face of controlling conclusions the Supreme Court and the federal courts of appeals have drawn about the possible harms that could ensue from premature disclosure of investigative materials. Watkins' efforts to revisit conclusions drawn by the courts flatly contradicts the Robbins Tire holding that courts may determine that disclosure of particular kinds of investigatory records while a case is pending could reasonably be expected to interfere with enforcement proceedings. Robbins Tire, 437 U.S. at 236. Finally, Watkins argues that the Garner affidavit was inadequate to support the district court's summary judgment ruling. Watkins Br. at 49. In arguing that more detailed information must be supplied, Watkins relies on a decision addressing an altogether different FOIA exemption. See King v. U.S. Dep't of Justice, 830 F.2d 210, 217, 224 (D.C. Cir. 1987) (discussing standards for considering Exemption 1 claim) (cited in Watkins Br. at 49). Under exemption 7(A), however, the Garner affidavit provides a plainly appropriate basis for the district court's ruling. As the Eighth Circuit has stated, "Exemption 7(A) does not require that the government produce a fact-specific, document-specific, Vaughn index in order to satisfy [its] burden. The contents of the requested documents are irrelevant. It is the particular categories of documents . . . on which the court must focus." In re Dep't of Justice, 999 F.2d 1302, 1309 (8th Cir. 1993) (en banc); see also Solar Sources, 142 F.3d at 1040 (noting Robbins Tire's holding that court may consider "generic exemptions of categories of documents"). The Garner affidavit was plainly adequate to support the court's ruling in this exemption 7(A) case. II. Watkins' claim in Count II seeking documents is moot because Watkins has already received the documents. The EEOC has provided Watkins with copies of the materials at issue in Count II, as required by the district court in its February 10, 2006, order. There are no additional documents that Watkins would receive if a court were to render a favorable ruling on Watkins' claim in Count II. A case becomes moot "when the parties lack a legally cognizable interest in the outcome." Murphy v. Hunt, 455 U.S. 478, 481 (1982) (internal quotations omitted). It is well-settled that once an agency produces the documents sought, the claims "no longer present a live controversy." Tijerina v. Walters, 821 F.2d 789, 799 (D.C. Cir. 1987); see also Lovell v. Alderete, 630 F.2d 428, 430-31 (5th Cir.1980) (holding issue was moot when plaintiff received documents sought even though the agency provided them in an untimely fashion); Perry v. Block, 684 F.2d 121, 125 (D.C. Cir. 1982) ("‘[o]nce the records are produced the substance of the controversy disappears and becomes moot since the disclosure which the suit seeks has already been made'") (citation omitted). Watkins has not argued that any of the exceptions to the general rule on mootness apply. The district court therefore properly denied the Count II claims as moot. CONCLUSION This Court should affirm the judgment of the district court. Respectfully submitted, RONALD S. COOPER General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ________________________ JENNIFER S. GOLDSTEIN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION CERTIFICATE OF SERVICE I hereby certify that the original and six copies of this brief were mailed, first class, postage prepaid, on this day, to the Office of the Clerk for the U.S. Court of Appeals for the Eleventh Circuit. In addition, a copy of this brief was uploaded to the Court's web site on November 21, 2006, in accordance with 11th Cir. R. 31-5. I also certify that two copies of this brief were mailed, first class, postage prepaid, on this day to the following: Joan M. Canny, Esq. Stearns, Weaver, Miller, Weissler, Alhadeff & Sitterson, P.A. Museum Tower 150 West Flagler Street, Suite 2200 Miami, FL 33130 ____________________________ JENNIFER S. GOLDSTEIN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, DC 20507 (202) 663-4733 November 21, 2006 CERTIFICATE OF COMPLIANCE I hereby certify that the attached opening brief is proportionally spaced, has a typeface of 14 points, and contains 9,050 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). _______________________________ Jennifer S. Goldstein Attorney for Equal Employment Opportunity Commission Dated: November 21, 2006 *********************************************************************** <> <1> To date, Watkins has not produced any of the documents. <2> The district court dismissed that action, holding that the Commission’s decision not to settle the case before concluding its investigation was not a “final agency action” subject to review by the district court. Watkins I, No. 8:05-CV-341, R.44. This Court affirmed that “well-reasoned opinion.” Watkins Motor Lines, 2006 WL 1410166. <3> The sixth category is information Watkins either created or received during the investigation, including correspondence between Watkins and the Commission and court documents. Watkins therefore already had copies of these documents. <4> The district court held that one category of documents – copies of applicant records Watkins provided the Commission – were not exempt from disclosure under FOIA. R.43. The Commission has not cross-appealed the district court’s ruling on this category. After receiving payment for the copies of the documents, as required under the FOIA regulations, 29 C.F.R. § 1610.15(a)(3), the Commission provided Watkins with the document copies. Counsel for Watkins has confirmed that she received the documents. <5> This brief only summarizes some of the potential harms. The Garner affidavit specifies which particular harms might ensue from disclosure of each particular document category. <6> In fact, Congress amended FOIA in 1986 to broaden the reach of exemption 7(A). In the Freedom of Information Reform Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207 (1986), Congress eliminated the requirement that an agency show disclosure would interfere with enforcement proceedings, and instead required an agency to show only that disclosure “could reasonably be expected to interfere.” See Curran v. Dep’t of Justice, 813 F.2d 473, 474 n.1 (1st Cir. 1987) (explaining that language “has been broadened”). <7> Decisions of the Fifth Circuit rendered prior to October 1, 1981, are binding precedent in the Eleventh Circuit. See Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc). <8> Courts are split on whether to apply a more lenient test than Pratt for criminal law enforcement agencies, see Arenberg, 849 F.2d at 580-81, but that question is not implicated in this civil case. <9> As discussed above, Watkins stressed that the Commission had not ruled on Watkins’ petition to modify or revoke the administrative subpoena at the time Watkins filed its opening brief. After it filed its brief with this Court, Watkins successfully moved to estop the Commission from discussing developments in the subpoena matter in its brief to this Court, despite the fact that Watkins itself seeks to have this Court make a finding as to the current state of the Commission’s investigation. As we have sought to explain in this brief, whether the Commission is still considering the petition to revoke or modify the subpoena – or whether it has ruled on that petition – does not undermine the district court’s finding of an ongoing investigation. If Watkins nonetheless continues to maintain that the status of the subpoena petition is important, the Commission respectfully suggests that Watkins should inform the Court of any developments in the subpoena matter. <10> A “Vaughn index” provides a specific factual description of each document sought by the FOIA requester. See Vaughn v. Rosen, 484 F.2d 820, 826-28 (D.C. Cir. 1973).