Vol. 75, No. 4, April 2002

Notary Public Records
Protecting the Privacy of Notary Public Records

by Michael L. Closen & Trevor J. Orsinger

More than any time in history, there are now far more prospects for unscrupulous individuals to commit financial crimes, especially the crime of identity theft. The notorious case of Wisconsin victim Jessica Grant, whose identity was misappropriated in 1997 by a Texas imposter who accumulated about $60,000 worth of debt in Grant's name, led in part to the adoption of Wisconsin's felony statute on identity theft.

The U.S. Secret Service reported that victims of identity theft lost $442 million in 1995, and more than $745 million in 1997. That amount is expected to grow dramatically. In an era when consumers provide personal and financial data in e-commerce and hackers steal bank account and credit card numbers online, the security of one's identity has become a sacred ideal heading toward extinction. The potential for identity theft now has infected a 350-year-old profession in America - the office of notary public.

A notary public is a state-commissioned officer who obtains an appointment by filling out an application, paying the state a fee, posting a bond through an insurance company, and buying a notary seal. The primary function of the notary public is to impartially verify the signatures of parties in important transactions. More than 4.2 million notaries public in the United States perform tens of thousands of notarizations daily; Wisconsin's more than 90,000 notaries perform hundreds of notarizations every business day.

Because notaries are strongly encouraged to maintain records detailing their notarial functions, and are statutorily required to maintain those records in some 18 states and territories, many notaries keep detailed journals that include each signer's name, address, signature, and other possible identifiers (such as driver's license, credit card, passport, or Social Security numbers). Through the nationwide notarization process, millions of people each year provide enough data, recorded in journals, that skillful thieves with access to the information could readily commit identity thefts and other crimes. When citizens go to their local notaries to have their signatures notarized, they are gambling with their identities, but not any longer in Wisconsin.

Wisconsin's Privacy Statute

With Wis. Stat. section 137.01 (5m), effective since May 2000, Wisconsin took a progressive legislative step toward protecting its citizens by adopting the first-ever notary record confidentiality statute. Section 137.01 (5m) declares notary records to be confidential and mandates that before a notary record can be released to a third party, the person who originally requested the instrument's notarization must consent in writing to such release.

Section 137.01 (5m) reads, in part, that a "notary public shall keep confidential all documents and information contained in any documents reviewed by the notary public while performing his or her duties as a notary public and may release the documents or the information to a third person only with the written consent of the person who requested the services of the notary public. ... Any notary public violating this subsection shall be subject to the provisions of sub. (8) and may be required to forfeit not more than $500."

Interestingly, although Wisconsin law does not require notaries to maintain notary journals, the language of section 137.02 (5m) is clearly broad enough to apply to such journals.

Additions to Improve the Privacy Statute

While Wisconsin's efforts to be the first state to implement regulations on notary law privacy are laudable, Wisconsin citizens would be better served if four additions were made to section 137.01 (5m). First, Wisconsin should join some 18 other U.S. jurisdictions in requiring notaries to maintain journals of their notarial acts. It is in the interest of document signers, notaries, and the public, who rely heavily on notarized documents, for notaries to maintain detailed journal entries that will help assure the validity of notarizations.

Second, notaries should be required to keep their journals and seals locked up and under their exclusive control when such materials are not in use. It is of little value to prohibit notaries from unilaterally disclosing the contents of journal entries if such journals can be left where employers and others might borrow and peruse them or where thieves might steal and misuse their contents. California recently became the only state to statutorily direct notaries to keep their seals and journals protected under lock and key.

Third, section 137.01 (5m) should be strengthened with a more severe penalty provision to serve as a greater deterrent to negligent and intentional violations of notary journal privacy. The $500 maximum fine that a notary might suffer is far too modest. It should be increased to a maximum of at least $5,000, allowing administrators or judges discretion to set the fines at appropriate levels on a case-by-case basis.

Fourth, section 137.01 (5m) goes somewhat too far in restricting access to notary journals, for it allows no exceptions to the requirement that the document signer must consent to any disclosure of the ledger contents. Circumstances arise in which fairness and justice would dictate the need for disclosure even without the signer's consent. If the document signer were unable to consent due to incompetence, death, or other unavailability, the statute should permit a surrogate or judge to approve the disclosure, including the opportunity to limit the disclosure to portions of a journal entry.

Every other state has a gaping statutory hole in the security of notarial records. Wisconsin has substantially closed the gap by passing section 137.01 (5m). Wisconsin's thoughtful legislative action should spark other states to adopt similar statutes. The privacy of personal and financial data in notary journals is simply too important to be left to the chance that an untrained and indifferent notary would do the right thing. As the Director General of Britain's National Crime Squad Roy Penrose observed, "there exists now a greater opportunity to commit crime than there was 50 years ago, and those who live according to that lifestyle never look a gift horse in the mouth."

Wisconsin Lawyer