HAR § 18-231-19.5-09 — Appellate review of petition for further segregation or petition for further disclosure

(a) No appeal to the office of information practices, or to any court, shall be entertained unless: HRS §231-19.5 HRS §231-19.5 ADMINISTRATION OF TAXES §18-231-19.5-11 (1) The person desiring to take the appeal has submitted a petition for further segregation or petition for further disclosure to the department; (2) The department has issued its determination on the petition; and (3) The appeal is filed not more than sixty days after the date the department issues its determination; provided that if more than forty-five days have elapsed after the date the department received the petition, and the department has not mailed a determination on the petition to the petitioner, then the petitioner may take an appeal as if the department had denied the petition. (b) Neither the department, the office of information practices, nor any court to which an appeal has been taken under section 231-19.5(f), HRS, regarding any petition to the department, shall consider: (1) The segregation of any information if the petitioner has not proposed that it be segregated; or (2) The disclosure of any information if the petitioner has not proposed that it be disclosed. (c) The department, the office of information practices, or a court to which appeal has been taken may consider any deletion or disclosure that is fairly encompassed by the petition. Example: Taxpayer P, a meat packing company, requests and receives a written opinion from the department. After receiving the notice of intention to disclose, P petitions for further segregation of the words “meat packing company” on page 1 of the opinion, because it is the only meat packing company in the State and may be identified readily. P , however, overlooks the phrase “P and other meat packers” on page 3. If the department grants P’s petition, the department may segregate the phrase on page 3 because the segregation is fairly encompassed by the petition. (d) A petition, or any appeal taken from the department’s decision on a petition, shall be denied to the extent that the petition or appeal is determined to be: (1) Frivolous, or (2) Made for any improper purpose, such as to harass or to cause unnecessary delay. Example 1: T, a taxpayer, requests and obtains a written opinion from the department. T then petitions the department, contending that no part of the written opinion should be disclosed because “all of the disclosed facts in the written opinion, when taken together, would identify” T. T refuses to elaborate upon T’s reasons or concerns. The department may deny the petition because it is frivolous. Example 2: T, a taxpayer, claims that E, T’s employer, has committed sexual harassment. In a closed arbitration proceeding, T recovers an award from E. T then requests and obtains a written opinion from the department holding that T’s recovery is not subject to general excise tax. T petitions the department to disclose several identifying details about E, among other things. The department determines that T’s motive for that part of the petition is to publicize the arbitration proceeding and in that way subject E to public scorn and ridicule. The department may deny the petition, insofar as it relates to identifying details about E, because it is being made for an improper purpose.