Disclaimer: The Electronic Commerce Security Act (ECSA) was repealed and replaced with the Uniform Electronic Transaction Act (UETA), effective June 25, 2021. Please note that this change may affect the continued accuracy of this guidance as it pertains to the ECSA.

Safe deposit box contracts. We are not aware of any specific legal requirements that apply to the retention of safe deposit box contracts. However, the statute of limitations for written contracts in Illinois is ten years. Consequently, we recommend retaining safe deposit box contracts for ten years after the termination of the contracts. 735 ILCS 5/13-206. This retention period also should be applied to any documents that may be relevant in a dispute over a safe deposit contract.

Dormancy letters. The Uniform Disposition of Unclaimed Property Act requires the holder of abandoned property to retain records regarding dormant property for five years after it is reported to the State Treasurer. 765 ILCS 1025/11(h)(2) [Repealed effective 1/1/18].  We believe this requirement includes the dormancy letters required by Section 11(e) of the Act. 765 ILCS 1025/11(e) [Repealed effective 1/1/18].

Electronic storage. We believe that both safe deposit box contracts and dormancy letters could be stored electronically.

The Illinois Financial Institutions Electronic Documents and Digital Signature Act states that if a bank stores documents in electronic form in the regular course of business, then an electronic version of a document has “the same force and effect under the laws of this State as one comprised, recorded, or created on paper or other tangible form by writing, typing, printing, or similar means.” 205 ILCS 705/10(a). Similarly, the federal Electronic Signatures in Global and National Commerce (ESIGN) Act states that “a signature, contract, or other record . . . may not be denied legal effect, validity, or enforceability solely because it is in electronic form.” 15 USC 7001(a)(1).

The Illinois Electronic Commerce Security Act (“ECSA”) states that as a general rule “information, records, and signatures shall not be denied legal effect, validity, or enforceability solely on the grounds that they are in electronic form.” 5 ILCS 175/5-110. While the ESCA has several exceptions relating to negotiable instruments and instruments of title, those exceptions would not apply to safe deposit box contracts and dormancy letters. 5 ILCS 175/5-115(b)(3). Importantly, ECSA provides for the admissibility of electronic records and electronic signatures into evidence in court proceedings. 5 ILCS 175/5-130. Where a rule of law specifically requires that certain records be retained, the law sets out three record retention requirements (5 ILCS 175/5-135): 

(1) the electronic record and the information contained therein are accessible so as to be usable for subsequent reference at all times when such information must be retained;   

(2) the information is retained in the format in which it was originally generated, sent, or received or in a format that can be demonstrated to represent accurately the information originally generated, sent or received; and   

(3) such data as enables the identification of the origin and destination of the information, the authenticity and integrity of the information, and the date and time when it was sent or received, if any, is retained.

Although the OCC is not your primary regulator, you may find this OCC advisory letter to be helpful, as it discusses the federal E-SIGN Act and the legal risks that need to be taken into account when developing an electronic record retention policy.