Do the recent amendments to the Illinois Notary Public Act requiring notaries to keep a journal apply to all notaries or only those performing electronic notarial acts? Should notaries begin keeping journals now, even if they are not yet required? Also, did the Illinois Secretary of State send out a notice to registered notaries about the new requirements?

Jan 14, 2022

—

The new requirement to keep a journal applies both to notarial acts and electronic notarial acts. As such, both notaries and electronic notaries will need to keep a journal of their notarial acts when this requirement goes into effect.

This requirement (established in Public Act 102-160) takes effect on the later of January 1, 2022, or the date on which the Illinois Secretary of State adopts rules necessary to implement the requirement. As of this writing (January 14, 2021), these rules have not been adopted.

Notaries may begin keeping journals now if they chose to do so, but this is not required, and we do not yet know the specific requirements for the journals. When the rules are implemented, they must set forth, at a minimum:

(1) the information to be recorded for each notarization or electronic notarization;

(2) the period during which the notary public or electronic notary public must maintain the journal; and

(3) the minimum security requirements for protecting the information in the journal and access to the contents of the journal.

Regarding notification of the new requirements, the Secretary of State has posted a notice on its website (linked in the resources below) indicating that updates will be posted on its webpage. Consequently, we recommend checking the Secretary of State’s notary services page periodically for future updates.

For resources related to our guidance, please see:

Illinois Notary Public Act, 5 ILCS 312/3-107(a) (“A notary public or an electronic notary public shall keep a journal of each notarial act or electronic notarial act which includes, without limitation, the requirements set by the Secretary of State in administrative rule, but shall not include any electronic signatures of the person for whom an electronic notarial act was performed or any witnesses.”)

Illinois Notary Public Act, 5 ILCS 312/3-104 (“‘Notarial act’ means an act, whether performed with respect to a tangible or electronic record, that a notary public, a remote notary public, or an electronic notary public may perform under the laws of this State. ‘Notary act’ includes taking an acknowledgment, administering an oath, or affirmation, taking a verification on oath, or affirmation, witnessing or attesting a signature, certifying or attesting a copy, and noting a protest of a negotiable instrument.”)

Illinois Notary Public Act, 5 ILCS 312/3-104 (“‘Electronic notarial act’ means an act that an electronic notary public of this State is authorized to perform. The term includes:

(1) taking an acknowledgment;

(2) administering an oath or affirmation;

(3) executing a jurat;

(4) certifying a true and correct copy; and

(5) performing such other duties as may be prescribed by a specific statute.”)

Illinois Notary Public Act, 5 ILCS 312/3-104 (“‘Notary public’ or ‘notary’ means an individual commissioned to perform notarial acts.”)

Illinois Notary Public Act, 5 ILCS 312/3-104 (“‘Electronic notary public’ means a person commissioned by the Secretary of State to perform electronic notarial acts.”)

Public Act 102-160, Section 99 (“This Act takes effect on the later of: (1) January 1, 2022; or (2) the date on which the Office of the Secretary of State files with the Index Department of the Office of the Secretary of State a notice that the Office of the Secretary of State has adopted the rules necessary to implement this Act. . . .”)

Illinois Notary Public Act, 5 ILCS 312/3-107(b) (“The Secretary of State shall adopt administrative rules that set forth, at a minimum:

(1) the information to be recorded for each notarization or electronic notarization;

(2) the period during which the notary public or electronic notary public must maintain the journal; and

(3) the minimum security requirements for protecting the information in the journal and access to the contents of the journal.”)

Secretary of State, Notary Services Index webpage

Secretary of State, Notice — Electronic and Remote Notarization Updates (“Public Act 102-160/Senate Bill 2664 authorizes the State of Illinois to implement programs and procedures allowing Illinois notaries public to perform notarizations remotely online and on documents transmitted, signed and notarized electronically. Though the effective date of the legislation is Jan. 1, 2022, the effective date of implementation will occur in the future when administrative rules are adopted by the Secretary of State. . . . As this office progresses toward the implementation of these programs, we will post updates on this webpage.”)

question, you stated that we can advertise the cost of an optional add-on checking account product that includes ID protection, among other benefits, as a “subscription” fee (rather than a “service” fee) if customers are not charged for services they do not receive. May we still refer to the cost of this product as a “subscription” fee if we do charge customers for services they do not receive but clearly disclose that customers who purchase this product may be charged for services they do not receive? The enrollment form customers must sign for this product indicates that they understand that registration or activation may be required for certain benefits and that they will be charged a monthly fee even if they do not register for or activate those benefits. The form also acknowledges that the customer has received a guide with information on how to activate and register for such benefits.