(concurring):

As I read the district court’s Memorandum and Order Granting Motion for Summary Judgment, Judge Schwartz correctly treated the investigatory records exemptions found in the Freedom of Information Act (FOIA) and the Privacy Act as coextensive. In my view, a coextensive reading of these exemptions is required to effectuate the purposes of both acts. Both the FOIA and the Privacy Act contain provisions under which a party may gain access to records maintained by agencies of the United States. Under the FOIA, an individual may gain access to nonexempt records, whether or not the records pertain to him or her. Under the Privacy Act, an individual may gain access to nonexempt records only if they concern him or her. Thus, an individual may obtain documents pertaining to him or her under both acts. It makes good sense, then, that parties should have the same access to records pertaining to them under the Privacy Act as they would have under the FOIA. In this way, the disclosure purpose underlying both acts may be effectuated.

Under the FOIA, 5 U.S.C. § 552 , agencies must release records to a requesting party unless those records fall within one of nine exemptions to disclosure set forth in § 552(b). The exemption at issue here is the investigatory records exemption contained in subsection (b)(7). That provision exempts investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would:

§ 552(b)(7).

Under the FOIA, when an agency refuses to disclose requested documents by asserting the investigatory records exemption, the requesting party may challenge the claimed exemption in district court. The court may then examine the documents in camera to determine if the (b)(7) exemption does indeed apply. § 552(a)(4)(B). The agency bears the burden of demonstrating both that the documents are investigatory records compiled for law enforcement purposes and that at least one of the justifications for nondisclosure spelled out in (b)(7) applies.

The scope of the investigatory records exemptions in the FOIA, 5 U.S.C. § 552 , *1208 and the Privacy Act, 5 U.S.C. § 552a, is basically the same. Subsection (j)(2)(B) of the Privacy Act generally exempts from disclosure any system of records maintained

§ 552a(j)(2)(B). To activate this exemption, however, an agency must promulgate rules in accordance with sections 553(b)(1), (2), and (3), (c), and (e) of the Administrative Procedure Act. Those rules must include a statement of reasons explaining why a system of records is exempt from the Privacy Act’s disclosure provisions. § 552a(j).

Pursuant to § 552a(j), the FBI activated the Privacy Act’s (j)(2)(B) investigatory records exemption by promulgating regulations in 28 C.F.R. § 16.96 . These regulations set forth the following statement of reasons justifying the exemption:

28 C.F.R. § 16.96 (b)(2).

When an agency refuses to disclose the requested documents by asserting the Privacy Act’s investigatory records exemption, the requesting party may challenge the claimed exemption in district court. The court is empowered to determine the matter de novo. § 552a(g)(3)(A). Unlike the FOIA, the Privacy Act does not expressly authorize in camera inspection of documents when an agency asserts the investigatory records exemption of subsection (j)(2)(B).

When one compares the (b)(7) exemption of the FOIA with the (j)(2)(B) exemption of the Privacy Act in conjunction with its activating regulations, the two schemes appear remarkably alike. Both schemes contemplate nondisclosure of documents for virtually identical reasons. For example, FOIA subsection (b)(7)(A) which authorizes nondisclosure if granting access to a document would “interfere with enforcement proceedings,” is very similar to 28 C.F.R. § 16 .-96(b)(2), promulgated under the Privacy Act, which justifies denial of access to a document where disclosure would “compromise ongoing investigations.” Furthermore, the considerations concerning the protection of national security, investigative techniques, personal privacy, and identity of confidential sources in subsections (b)(7)(C), (D), and (E) of the FOIA are mirrored in the Privacy Act’s regulations at § 16.96(b)(2). Since the considerations regarding investigatory records are the same in both statutory schemes, when a request for access to documents is made under both acts, the most reasonable way to correlate the statutes would be to read the exemptions coextensively.

Additional support for a coextensive reading of the two exemptions is found in the Office of Management and Budget Guidelines to the Privacy Act, 40 Fed.Reg. 28,949 (July 9, 1975) and Supplementary Guidelines, 40 Fed.Reg. 56741 (December 4, 1975). The Privacy Act charges the OMB with the task of devising guidelines for the implementation of the Act. § 552a note. These guidelines state:

Supplementary Guidelines, 40 Fed.Reg. at 56743. The thrust of the OMB Guidelines is clear: they give the requesting individual the benefits of both acts. Thus, in keeping with the spirit of the OMB Guidelines, a coextensive reading of the two investigatory records exemptions would assure that individuals do not, as a consequence of the Privacy Act, have less access to information pertaining to themselves than they had under the earlier enacted FOIA.

In reading the exemptions coextensively, the question arises whether the court should allow an agency to claim the Privacy Act’s investigatory records exemption only if release of material in the particular record would have one of the adverse effects set forth in the statement of reasons at 28 C.F.R. § 16.96 . 1 The Fourth Circuit recently upheld a denial of access under the Privacy Act where the reason for withholding the document was consistent with at least one of the adverse effects listed in the statement of reasons. Ryan v. Department of Justice, 595 F.2d 954, 957 (4th Cir. 1979). The Privacy Act does not expressly authorize in camera inspection by th§ district court of records purportedly exempt under subsection (j). This silence should not be construed to mean that Congress intended to preclude inquiry into whether release of material in the records would result in one of the adverse effects set forth in the statement of reasons. For a court to uphold an asserted investigatory record exemption without inquiring into whether the information in the document justifies the exemption would make judicial review meaningless.

Moreover, although Congress did not expressly authorize in camera review of investigatory records falling within the Privacy Act’s (j) exemption, Congress did, nonetheless, authorize the district court both to enjoin an agency from improperly withholding records and to order the production of such records after a de novo determination. § 552a(g)(3)(A). 2 Implicit in that authorization of de novo review is the power to examine the questioned document because “ ‘de novo’ means trying the matter anew, the same as if it had not been heard before and as if no decision had been previously rendered.” Farmingdale Supermarket, Inc. v. United States, 336 F.Supp. 534, 536 (D.C.N.J.1971). Without the power of inspection, de novo review would be an ineffective remedy. In other words, in camera inspection is mandated because (1) de novo review is meaningless without it and (2) it is the only way a court can determine that the claimed exemption complies with the statement of reasons requirement set forth in § 552a(j).

For the foregoing reasons, I conclude that the investigatory records exemptions under the two acts should be read coexten-sively. Judge Schwartz did just that. I vote to affirm.

. This question does not arise under the FOIA because subsection (b)(7) expressly requires that a reason supporting the exemption exist. See also Epstein v. Resor, 421 F.2d 930, 933 (9th Cir.), cert. denied 398 U.S. 965 , 90 S.Ct. 2176 , 26 L.Ed.2d 549 (1970).

. § 552a(g)(3)(A) provides, in pertinent part:

(Emphasis added.) The Privacy Act debates are silent as to why subsection (j) was omitted from this provision. See 120 Cong.Rec. 36655 (1974) (remarks of Rep. Moorhead), reprinted in Legislative History of the Privacy Act of 1974 (Sourcebook on Privacy), at 908 (1976).