[§231-19.5]  Public inspection andcopying of written opinions.  (a)  Written opinions shall be open to publicinspection and copying as provided in this section, notwithstanding sections235-116, 236D-15, 237-34, and 237D-13 and any other law restricting disclosureof tax returns or tax return information to the contrary.  Except as providedin 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 asprecedent unless otherwise provided by department rules.

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

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

(2)  An information letter, which is a writtenstatement issued by the department that provides general information by callingattention to a well-established interpretation or principle of tax law, whetheror not it applies to a specific set of facts.  An information letter may beissued when the nature of the request from the taxpayer suggests that thetaxpayer is seeking general information, or where the department believes thatgeneral information will assist the taxpayer; or

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

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

(d)  Upon issuance of any written opinion, thedepartment shall mail a notice of intention to disclose the opinion togetherwith a copy of the opinion showing the text the department proposes tosegregate to any person to whom the written opinion pertains (or any knownsuccessor in interest, personal representative, or other person authorized bylaw 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 topublic inspection and copying no earlier than seventy- five days, and no laterthan ninety days, after the department's notice of intention to disclose ismailed.  At the written request of a person to whom the written opinionpertains (or a successor in interest, personal representative, or other personauthorized by law to act for or on behalf of the person), the preceding periodmay be extended, but the department shall make the written opinion availablefor inspection and copying no later than one hundred eighty days after thenotice to disclose is mailed, including extensions.

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

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

(1)  Any person:

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

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

(C)  Who disagrees with a decision by thedepartment not to segregate information from any written opinion; or

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

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

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

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

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

(i)  The department shall compile yearly anindex in such form as the department determines of all written opinions issuedduring the preceding calendar year.  Copies of the index shall be furnishedupon the payment of 50 cents a page.  Copies of written opinions shall befurnished 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 taxreturn information and the department shall not be required by any court todisclose any written opinion except as specifically authorized by title 14.

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

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