§231-19.5 - Public inspection and copying of written opinions.

[§231-19.5] Public inspection and
copying of written opinions. (a) Written opinions shall be open to public
inspection and copying as provided in this section, notwithstanding sections
235-116, 236D-15, 237-34, and 237D-13 and any other law restricting disclosure
of tax returns or tax return information to the contrary. Except as provided
in subsection (f), regarding the disclosure of the text of written opinions,
chapter 92F shall not apply to tax returns and tax return information.

A written opinion may not be used or cited as
precedent unless otherwise provided by department rules.

(b) For purposes of this section, the term
"written opinion" means a written statement issued by the department
to a taxpayer, or to the taxpayer's authorized representative on behalf of the
taxpayer, that interprets and applies any provision in title 14 administered by
the department to a specific set of facts. A written opinion generally recites
the relevant facts, sets forth the applicable provisions of law, and shows the
application of the law to the facts. A written opinion shall not include:

(1) Any written communication from the department to
any person in connection with the examination or audit of any person's tax
return, or in connection with collection activities relating to any person's
delinquent tax liability;

(2) An information letter, which is a written
statement issued by the department that provides general information by calling
attention to a well-established interpretation or principle of tax law, whether
or not it applies to a specific set of facts. An information letter may be
issued when the nature of the request from the taxpayer suggests that the
taxpayer is seeking general information, or where the department believes that
general information will assist the taxpayer; or

(3) A determination letter, which is a written
statement issued by the department that applies an interpretation or principle
of tax law clearly established by statute, rule, written opinion, or published
court decision to a particular set of facts. A determination letter includes
the grant or denial of consent, permission, exemption or registration, or a
routine correspondence in response to taxpayer inquiries. A determination
letter shall be designated as such, and shall indicate the clearly established
interpretation or principle applied and its source.

(c) Before making a written opinion available
for public inspection and copying under subsection (a), the department where
possible shall segregate from the opinion trade secrets or other confidential,
commercial, and financial information, and identifying details such as the
name, address, and social security or tax identification number of the person
to whom the written opinion pertains and of any other person identified in the
written opinion. Segregated text shall not be disclosed under this section.

(d) Upon issuance of any written opinion, the
department shall mail a notice of intention to disclose the opinion together
with a copy of the opinion showing the text the department proposes to
segregate to any person to whom the written opinion pertains (or any known
successor in interest, personal representative, or other person authorized by
law to act for or on behalf of such person).

(e) Except as otherwise provided in subsection
(h), a written opinion, as segregated under subsection (c), shall be open to
public inspection and copying no earlier than seventy- five days, and no later
than ninety days, after the department's notice of intention to disclose is
mailed. At the written request of a person to whom the written opinion
pertains (or a successor in interest, personal representative, or other person
authorized by law to act for or on behalf of the person), the preceding period
may be extended, but the department shall make the written opinion available
for inspection and copying no later than one hundred eighty days after the
notice to disclose is mailed, including extensions.

(f) The department's decision as to what
constitutes a written opinion is final. A decision concerning the disclosure
of the text of written opinions may be contested, but only in the manner and
within the time set forth in this subsection. Any person who meets the
requirements of paragraph (1) or (2) and who has exhausted the administrative
remedies as prescribed by rules adopted by the department may appeal within
sixty days of the date of the department's decision to the office of
information practices in accordance with procedures established by the office
of information practices under sections 92F-15.5 and 92F-42(1). The office of
information practices may examine the written opinion at issue, in camera, to
assist in determining whether it, or any part of it, may be withheld. In
determining whether information constitutes a trade secret or other
confidential, commercial, and financial information, the office of information
practices may consider and apply, in addition to any other relevant sources,
interpretations of those terms under chapter 92F.

Only the following persons may contest a
decision of the department concerning the disclosure of written opinions:

(1) Any person:

(A) To whom a written opinion pertains (or a
successor in interest, personal representative, or other person authorized by
law to act for or on behalf of the person);

(B) Who has a material interest in maintaining
the confidentiality of any written opinion or portion thereof; and

(2) Any person who is aggrieved by the department's
denial of a request to inspect and copy any written opinion or portion thereof.

Any person aggrieved by a decision of the
office of information practices may appeal the decision to the circuit court of
the first judicial circuit, or of the judicial circuit in which the request for
the written opinion is made or in which a copy of the written opinion is
maintained by the department. The appeal shall be filed within thirty days
after the date of the decision of the office of information practices. The
circuit court shall hear the matter de novo. Opinions and ruling of the office
of information practices shall be admissible. The circuit court may examine
the written opinion at issue, in camera, to assist in determining whether it,
or any part of it, may be withheld.

Any person advocating nondisclosure or
segregation under paragraph (1) shall have the burden of proof and persuasion,
but any person under paragraph (2) need only establish the denial of a request
and the department shall have the burden of proof and persuasion to justify the
denial of the request to inspect and copy.

(g) Except for cases the circuit court
considers of greater importance, proceedings before the court, as authorized by
this section, and appeals therefrom, shall be assigned for hearing and trial or
for argument at the earliest practicable date and expedited in every way.

(h) Upon appeal to the office of information
practices or a court under subsection (f), the written opinion at issue shall
not be made available for public inspection and copying pending the final
decision in the case. If the final decision in the case determines that the
written opinion subject to the appeal shall be open and available to public
inspection and copying, or that confidential or identifying information must be
segregated, then the department shall make the written opinion available for
public inspection and copying not later than thirty days after the decision
becomes final. The office of information practices or the court may extend
this thirty-day period for such time as the office of information practices or
the court finds necessary to allow the department to comply with its decision.

(i) The department shall compile yearly an
index in such form as the department determines of all written opinions issued
during the preceding calendar year. Copies of the index shall be furnished
upon the payment of 50 cents a page. Copies of written opinions shall be
furnished upon the payment of $1 a page.

(j) Except as provided in this section,
written opinions shall remain subject to all laws governing tax returns and tax
return information and the department shall not be required by any court to
disclose any written opinion except as specifically authorized by title 14.

(k) No officer or employee of the department
shall be in violation of any law prohibiting the disclosure of tax returns or
tax return information, or in violation of any other law restricting the
disclosure of information, due to the release of any written opinion pursuant
to this section.

(l) The department may adopt rules pursuant to
chapter 91 to implement this section. [L 1994, c 115, §2]