Vol. 75, No. 4, April
Notary Public Records
Protecting the Privacy of Notary Public Records
In May 2000, Wisconsin became the first state to
declare notary records to be confidential and to require written consent
before a notary record can be released to a third party.
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
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
Wisconsin's Privacy Statute
Closen, University of Illinois 1994, is a professor of law at
John Marshall Law School. He is a notary public in Illinois.
Trevor J. Orsinger is a second year
student at John Marshall Law School and a notary public in Illinois.
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
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."