OH Senate Bill 263 | NNA
Law

OH Senate Bill 263

Notary Law Update: OH Senate Bill 263

State: Ohio

Summary:

Senate Bill 263 enacts both extensive Notary reforms and online notarization provisions.

Signed:  December 19, 2018

Effective:  September 19, 2019

Chapter: TBD

Affects:

Amends sections 147.01, 147.03, 147.04, 147.05, 147.06, 147.07, 147.08, 147.13, 147.14, 147.37, 147.371, 147.51, 147.55, enacts sections 147.011, 147.021, 147.022, 147.031, 147.032, 147.041, 147.051, 147.141, 147.142, 147.542, 147.551, 147.59, 147.591, 147.60, 147.61, 147.62, 147.63, 147.631, 147.64, 147.65, 147.66 to, and repeals sections 147.02 and 147.09 of the Ohio Revised Code (ORC).

Changes:

Commissioning

  1. Defines “disqualifying offense” as a crime of moral turpitude as defined in ORC 4776.10 and a violation of a provision of ORC Chapter 2913
  2. Requires an applicant for a Notary commission to have submitted a criminal records check report completed within the preceding six months demonstrating that the applicant has not been convicted of or pleaded guilty or no contest to a disqualifying offense, or any offense under an existing or former Ohio law, law of any other state, or the United States that is substantially equivalent to such a disqualifying offense.
  3. Requires an applicant to have successfully completed an educational program and passed a test administered by the entities authorized by the Secretary of State.
  4. Exempts an attorney admitted to the practice of law Ohio from submitting a criminal records check when applying to be appointed a Notary and from completing the education program and test requirement if the attorney is commissioned as a Notary prior to the effective date of the new law.
  5. Requires an attorney who applies for a Notary commission the effective date of the new law to fulfill the educational, but not the test, requirement.
  6. Transfers the commissioning of Notaries from the county courts of common pleas to the Secretary of State.
  7. Clarifies that a commission for a Notary appointed prior to the effective date of the new law remains valid until that commission’s expiration date, except for a commission issued to an attorney, which is governed by ORC 147.03.
  8. Clarifies that a commission that is set to expire shall not be renewed unless the Notary submits to the Secretary of State through the entities authorized in ORC 147.021 of the Revised Code all of the following: (a) a new criminal records check report; (b) a fee of not more than $60, set by the Secretary of State by rule; and (c) an application for renewal on a form prescribed by the Secretary.
  9. Requires the Secretary of State shall establish a fee of not more than $150 to be paid by each person receiving a commission as Notary.
  10. Requires the Notary to remit the fee to the authorized entity that administered the educational program and test, and to remit to the Secretary of State the portion of that fee specified by rule.
  11. Requires the Secretary of State to adopt rules to (a) establish the amount of the fee, not to exceed $150 for a Notary commission; (b) establish the portion of the fee, not to exceed $15, that the Notary is required to remit to the Secretary; and (c) establish the portion of the fee that a Notary who is an attorney shall remit to the entity that administered the educational program.

Educational Requirement

  1. Clarifies that a Notary may apply to renew the Notary’s commission beginning 3 months prior to the expiration date of the commission.
  2. Clarifies that if a Notary’s commission expires before the Notary submits the application for renewal, the Secretary of State shall not renew that expired commission but shall permit the person to apply for a new commission.
  3. Authorizes the entities approved by the Secretary of State to administer the educational program and required test or course of instruction and examination, as applicable.
  4. Requires all submissions to the Secretary of State for receiving and renewing commissions, or notifications made under ORC 147.05 to be done electronically.
  5. Authorizes the Secretary of State to authorize that the education and testing program be completed online.
  6. Requires the Secretary of State to adopt by rule the standards and curricula for the educational program required under this section.
  7. Provides that the rules for the educational program must address all of the following: (a) the entities authorized to administer the educational program and the required test, which shall include those entities providing Notary educational programming and testing services prior to the effective date of the new law or another entity that has a business relationship with an entity providing Notary educational programming and testing services prior to the effective date of the new law; and (b) the standards and curricula of the program, which shall include the terms of Notary commission, how to renew a commission, the conditions under which a commission may be revoked, what constitutes a legal notarial act, the manner of taking depositions, the taking of an acknowledgment, the administration of a jurat; and the provisions and content of the required test.

Criminal Records Check

  1. Defines “criminal records check” as having the same meaning as in section 109.572 of the Revised Code.
  2. Prohibits the Secretary of State from accepting an application for a Notary commission that includes the report of a criminal records check that is more than 6 months old.
  3. Requires the Secretary of State to provide to each person applying for a Notary commission information about accessing, completing, and forwarding to the superintendent of the Bureau of Criminal Identification and Investigation the form and the standard impression sheet to obtain fingerprint impressions.
  4. Requires each applicant to pay to the Bureau of Criminal Identification and Investigation the required fee prescribed under ORC 109.572(C)(3) for the criminal records check.
  5. Provides that the criminal records check is not a record for the purposes of ORC 149.43 and shall not be made available to any person other than the following: (a) the applicant or the applicant’s representative; (b) the Secretary of State and the staff of the Secretary of State; and (c) a court, hearing officer, or other necessary individual involved in a case dealing with a commission denial resulting from the criminal records check.
  6. Requires the Secretary of State to deny a Notary commission application if an applicant fails to (a) access, complete, or forward to the superintendent of the Bureau of Criminal Identification and Investigation the form or the standard impression sheet for the criminal records check; or (b) submit the completed report of the criminal records check to the Secretary of State.

Investigations and Hearings

  1. Authorizes the Secretary of State to investigate violations of ORC Chapter 147 if the Secretary believes that a violation has occurred.
  2. Authorizes the Secretary of State to investigate possible violations of ORC Chapter 147 upon a signed complaint from any person.
  3. Authorizes the Secretary of State to hold a disciplinary hearing if the Secretary determines a hearing to be appropriate after an investigation is conducted.
  4. Provides that after holding an administrative hearing and concluding that a violation of ORC Chapter 147 has occurred, the Secretary of State may do any of the following: (a) revoke the Notary’s commission; (b) suspend the Notary’s commission for a specified period of time or until fulfillment of a condition, such as retraining, or both; or (c) issue a letter of admonition that shall be placed in the Notary’s record.
  5. Provides that a person whose Notary commission has been revoked may not apply for a subsequent commission.
  6. Permits the Secretary of State to adopt rules that set forth procedures for investigations and hearings regarding violations and disciplinary actions.
  7. Permits the Secretary of State to establish an advisory board to meet as the Secretary considers necessary to discuss matters related to Notary law and procedures.

Seal and Register

  1. Requires the Notary’s official seal to be at least ¾ of an inch, but not larger than 1 inch in diameter.
  2. No longer requires a Notary to have an official register in which to record every certificate of protest and copy of note.
  3. Provides that a Notary commissioned prior to the effective date of the new law may continue to use a seal that met the requirements of ORC 147.04 of the Revised Code and that was in that person’s possession before that date.

Status Changes

  1. No longer requires a Notary who legally changes his or her name to notify the appropriate clerk of courts but continues to require the Notary to notify the Secretary of State on a form prescribed by the Secretary.
  2. Provides that all Notaries, including attorneys, who resign the Notary commission must deliver to the Secretary of State, on a form prescribed by the Secretary, a written notice indicating the effective date of resignation.
  3. Requires a Notary to inform the Secretary of State of being convicted of or pleading guilty or no contest to any disqualifying offense, as defined in ORC 147.011, or any offense under an existing or former Ohio law, law any other state, or law the United States that is substantially equivalent to such a disqualifying offense during the term of the Notary’s commission.
  4. Requires the Secretary of State to revoke the commission of any person who is convicted of or pleads guilty or no contest to a disqualifying offense, including an attorney licensed to practice law in this state.
  5. Requires the Secretary of State to maintain a database of Notaries on a publicly accessible website that provide all of the following information: (a) a verification of the authority and good standing of the individual to perform notarial acts; (b) whether the Notary is registered to perform online notarizations; and (c) a description of any administrative or disciplinary action taken against the Notary.

Notarial Acts and Fees

  1. Defines “acknowledgment” as a notarial act in which the signer of the notarized document acknowledges all of the following: (a) that the signer has signed the document; (b) that the signer understands the document; (c) that the signer is aware of the consequences of executing the document by signing it.
  2. Defines “jurat” as a notarial act in which (a) the signer of the notarized document is required to give an oath or affirmation that the statement in the notarized document is true and correct, and (b) the signer signs the notarized document in the presence of a Notary.
  3. No longer authorizes Notaries to receive, make and record notarial protests.
  4. Allows an individual whose physical characteristics limit the individual’s ability to sign a document presented for notarization to direct a designated alternative signer to sign on the individual’s behalf, if: (a) the individual clearly indicates, through oral, verbal, physical, electronic, or mechanical means, to the Notary the individual’s intent for the designated alternative signer to sign the individual’s name on the notarial document; (b) both the individual and the designated alternative signer provide satisfactory identification to the Notary; (c) the designated alternative signer signs the document in the presence of the Notary; (d) the designated alternative signer is not named in the document; and (e) the notarial certificate provided to the individual gives the name of the designated alternative signer and states that the document was signed under this section at the direction of the individual.
  5. Allows an individual to use a designated alternative signer to perform an online notarial act if all of the requirements are met.
  6. Raises the fee a that Notary may charge for any notarial act that is not an online notarization to no more than $5.
  7. Sets the fee for an online notarization to be no more than $25.
  8. Clarifies that a Notary who charges the fee for a notarial act may not also charge the fee for an online notarial act.
  9. Clarifies that the fees for a notarial and online notarial act shall not be calculated on a per-signature basis.
  10. Allows a Notary to charge a reasonable travel fee as agreed to by the Notary and the principal prior to the notarial act.
  11. Authorizes the Secretary of State to adopt rules to increase the fees Notaries may charge.

Prohibited Acts

  1. Prohibits a Notary from performing a notarial act with regard to a record or document executed by the Notary.
  2. Prohibits a Notary from notarizing the Notary’s own signature.
  3. Prohibits a Notary from taking the Notary’s own deposition.
  4. Prohibits a Notary from performing a notarial act if the Notary has a conflict of interest with regard to the transaction in question, and clarifies that “conflict of interest” means either of the following: (a) the Notary has a direct financial or other interest in the transaction in question, excluding the fees authorized under this chapter; or (b) The Notary is named, individually or as a grantor, grantee, mortgagor, mortgagee, trustor, trustee, beneficiary, vendor, lessor, or lessee, or as a party in some other capacity to the transaction.
  5. Prohibits a Notary from certifying that a document is either an original document or a true copy of another record.
  6. Prohibits a Notary from using a name or initial in signing certificates other than that by which the Notary is commissioned
  7. Prohibits a Notary from signing notarial certificates using a facsimile signature stamp unless the Notary has a physical disability that limits or prohibits the Notary’s ability to make a written signature and unless the Notary has first submitted written notice to the Secretary of State with an example of the facsimile signature stamp.
  8. Prohibits a Notary from affixing the Notary’s signature to a blank form of an affidavit or certificate of acknowledgment and deliver that form to another person with the intent that it be used as an affidavit or acknowledgment.
  9. Prohibits a Notary from taking the acknowledgment of, or administer an oath or affirmation to, a person who the Notary knows to have been adjudicated mentally incompetent by a court of competent jurisdiction if the acknowledgment or oath or affirmation necessitates the exercise of a right that has been removed.
  10. Prohibits a Notary from notarizing a signature on a document if it appears that the person is mentally incapable of understanding the nature and effect of the document at the time of notarization.
  11. Prohibits a Notary from altering anything in a written instrument after it has been signed by anyone.
  12. Prohibits a Notary from amending or altering a notarial certificate after the notarization is complete.
  13. Prohibits a Notary from notarizing a signature on a document if the document is incomplete or blank.
  14. Prohibits a Notary from notarizing a signature on a document if it appears that the signer may be unduly influenced or coerced so as to be restricted from or compromised in exercising the person’s own free will when signing the document.
  15. Prohibits a Notary from taking an acknowledgment of execution in lieu of an oath or affirmation if an oath or affirmation is required.
  16. Prohibits a Notary from determining the validity of a power of attorney document or any other form designating a representative capacity, such as trustee, authorized officer, agent, personal representative, or guardian, unless that Notary is an attorney licensed to practice law in Ohio.
  17. Clarifies that the while Notaries are prohibited from certifying a copy, a Notary may notarize the signature of a holder of a document on a written statement certifying that the document is a true copy of an original document.
  18. Prohibits a Notary who is not a licensed attorney in Ohio from representing or advertising himself or herself as an immigration consultant or an expert in immigration matters.
  19. Prohibits a Notary who is not a licensed attorney in Ohio from (a) providing any service that constitutes the unauthorized practice of law in violation of ORC 4705.07; (b) stating or imply that the Notary is an attorney licensed to practice law; (c) soliciting or accepting compensation to prepare documents for or otherwise represent the interest of another person in a judicial or administrative proceeding, including a proceeding relating to immigration to the United States, United States citizenship, or related matters; (d) soliciting or accepting compensation to obtain relief of any kind on behalf of another from any officer, agency, or employee of this state or of the United States; and (e) using the phrase “notario” or “notario o” to advertise the services of a Notary , whether by sign, pamphlet, stationery, or other written communication, or by radio, television, or other non-written communication.

Notarial Certificate

  1. ­­­­­­­­­­­­­­­­­­­­­­­Defines “notarial certificate” as the part of, or attachment to, a document that is completed by the Notary and upon which the Notary places the Notary’s signature and seal.
  2. Requires a Notary to provide a completed notarial certificate for every notarial act the Notary performs.
  3. Requires the notarial certificate for an acknowledgment and a jurat to indicate the type of notarization being performed.
  4. Provides that if a notarial certificate incorrectly indicates the type of notarization performed, the Notary must provide a correct certificate at no charge to the person signing in question.
  5. Requires an acknowledgment certificate to clearly state that no oath or affirmation was administered to the signer with regard to the notarial act.
  6. Requires a jurat certificate to clearly state that an oath or affirmation was administered to the signer with regard to the notarial act.
  7. Prohibits a Notary from using an acknowledgment certificate with regard to a notarial act in which an oath or affirmation has been administered.
  8. Prohibits a Notary from using a jurat certificate with regard to a notarial act in which an oath or affirmation has not been administered.
  9. Specifies that a notarial certificate may be provided through any of the following means: (a) preprinting on a notarial document; (b) ink stamp; (c) handwritten note; or (d) a separate, attached document.
  10. Requires a notarial certificate to show: (a) the state and county venue where the notarization is being performed; (b) the wording of the acknowledgment or jurat in question; (c) the date on which the notarial act was performed; (d) the signature of the Notary, exactly as shown on the Notary’s commission; (e) the Notary’s printed name, displayed below the Notary’s signature or inked stamp; and (f) the Notary’s notarial seal and commission expiration date.
  11. Requires that if an electronic document was signed in the physical presence of a Notary and notarized, or if an online notarization was performed, the certificate shall include a statement to that effect.
  12. Allows a Notary to explain to a signer the difference between an acknowledgment and a jurat, but prohibits the Notary, unless that Notary is an attorney, from advising the person on the type of notarial act that best suits a situation.
  13. Strikes the requirement of including the Notary’s serial number, if any, on the short form certificates in ORC 147.55.
  14. Specifies a certificate form for a jurat.

Electronic Notarizations

  1. Clarifies that an electronic document that is signed in the physical presence of the Notary with an electronic signature and notarized with an electronic seal shall be considered an original document.
  2. Provides that a printed copy of a document executed electronically by the parties and acknowledged or sworn before a Notary shall be accepted by county auditors, engineers, and recorders for purposes of approval, transfer, and recording to the same extent as any other document that is submitted by an electronic recording method and shall not be rejected solely by reason of containing electronic signatures or an electronic notarization, including an online notarization, if that document contains a notarial certificate that meets the requirements of ORC 147.542, including the notification required ORC 147.542(G)(7).
  3. Allow any Notary to obtain an electronic seal and an electronic signature for the purposes of notarizing documents.
  4. Requires a Notary to comply with the provisions of ORC 147.66 pertaining to the electronic seal and electronic signature.

Online Notarization Definitions

  1. Defines “appear in person,” “credential analysis,” “electronic,” “electronic document,” “electronic seal,” “electronic signature,” “identity proofing,” “notarial act,” “online notarization,” “online notary ,” “principal,” “remote presentation,” and “territory of the United States.”
  2. Clarifies that ORC 147.60 to 147.66 pertaining to online notarization supersede any other laws if the laws are in conflict.

Online Notarization Rules

  1. Requires the Secretary of State, with assistance from the Department of Administrative Services, to adopt rules to implement, set, and maintain standards for online notarizations and online notaries.
  2. Provides that the rules for online notarization must address, at a minimum, all of the following: (a) the standards, procedures, application forms, and fees for the authorization of a Notary to act as an online Notary; (b) the means of performing online notarizations; (c) standards for the technology to be used in online notarizations; (d) standards for remote presentation, credential analysis, and identity proofing; (e) standards for the retention of records relating to online notarizations; (f) the modification of forms of notarial certificates for any notarial act that is an online notarization;(g) standards and requirements for the termination of a Notary’s authorization to perform online notarizations.
  3. Requires the Secretary of State to adopt rules related to continuing education requirements for an online notarization authorization that specifies the number of hours of continuing education a Notary must complete over the duration of the Notary’s license and may specify content to be included in the continuing education.
  4. Requires the Secretary of State to adopt rules to establish the amount of the fee for the online course and exam, which shall not exceed 4 times the amount of the fee established by ORC 147.37 and the portion of the fee, not to exceed $20, that the Notary is required to remit to the Secretary.
  5. Requires the Secretary of State to include in its online notarization rules modified forms of notarial certificates for an online notarization.

Online Notarization Authorization

  1. Provides that an appointed and commissioned Notary who is a resident of Ohio may apply to the Secretary of State to be authorized to act as an online Notary during the term of that Notary ’s commission.
  2. Provides that a state resident commissioned as a Notary qualifies to be an online Notary by paying the fee described in ORC 147.631 and submitting to the Secretary of State an application in the form prescribed by the Secretary that demonstrates to the satisfaction of the Secretary that the applicant will comply with the standards adopted in rules and that the applicant is otherwise qualified to be an online Notary.
  3. Provides that before an individual may be authorized to act as an online Notary, that individual shall successfully complete a course of instruction approved by the Secretary of State and pass an examination based on the course.
  4. Requires an online notarization application to be transmitted electronically to the Secretary of State and include: (a) the applicant’s full legal name and official Notary name to be used in acting as an online Notary; (b) a description of the technology the applicant intends to use in performing online notarizations; (c) a certification that the applicant will comply with the rules for online notarization; (d) an email address of the applicant; (e) any decrypting instructions, keys, codes, or software necessary to enable the application to be read; (f) proof of successful completion of the online notarization course and examination; (g) a disclosure of any and all license or commission revocations or other professional disciplinary actions taken against the applicant; and (h) any other information that the Secretary of State may require.
  5. Provides that the authorization to perform online notarizations expires when the Notary’s commission expires or is revoked under ORC 147.03, 147.031, or 147.032.
  6. Requires the authorization to perform online notarizations to be renewed when the Notary’s commission is renewed and requires a Notary to submit to the Secretary of State or through an entity authorized by law all of the following: (a) a fee, set by the Secretary of State, of not more than four times the fee prescribed in ORC 147.031(B)(2); (b) an application for renewal on a form prescribed by the Secretary; and (c) evidence of having completed continuing education.
  7. Clarifies that if a Notary’s online notarization authorization expires before the Notary submits the application for renewal, the Secretary of State shall not renew that expired authorization but shall permit that person to apply for a new online notarization authorization.
  8. Clarifies that an authorization to perform online notarizations granted to an attorney admitted to the practice of law in Ohio shall expire on the earlier of 5 years after the date the authorization is granted or when the attorney’s term of office as a Notary ends.
  9. Allows an attorney authorized to perform online notarizations to apply to renew the attorney’s authorization 3 months prior to the authorization’s expiration date.
  10. Provides that the Secretary of State may deny an application for online Notary authorization if any of the required information is missing or incorrect on the application form and also if the technology the applicant identifies for performing online notarizations does not conform to the standards developed by the Secretary.
  11. Clarifies that an online Notary may receive, install, and utilize a software update to the technology that the online Notary disclosed on the application for authorization to perform online notarizations if that software update does not result in a technology that is materially different from the technology that the online Notary disclosed.
  12. Provides that if a Notary changes either the hardware or the software that the Notary intends to use to carry out online notarizations, then the Notary shall inform the Secretary of State of this intent on a form prescribed by the Secretary, and further provides that if the Secretary determines that the new hardware or software does not meet the standards prescribed by rule, then the Secretary may suspend or revoke the Notary’s authority to perform online notarizations.

Online Notarization Education and Exam

  1. Provides that the content of the course on online notarization shall include notarial rules, procedures, and ethical obligations pertaining to online notarization contained in ORC 147.60 to 147.66 or in any other law or rules of Ohio.
  2. Provides that the course on online notarization may be taken in conjunction with the educational program required under ORC 147.021 for a Notary commission.
  3. Requires the Secretary of State to approve one business entity comprised of bar associations with statewide scope and regional presence that have expertise and experience in Notary laws and processes to provide the course and administer the examination to become an online Notary.
  4. Prohibits the Secretary of State from renewing an online notarization authorization unless the applicant has completed continuing education.
  5. Authorizes the Secretary of State to charge a fee for the online Notary course of instruction and examination.
  6. Requires the Notary taking the online Notary course of instruction and the examination to remit the fee to the authorized entity that administered the online Notary course of instruction and examination and to remit to the Secretary of State the portion of that fee specified by law.

Online Notarial Acts

  1. Except for taking or certifying a deposition, authorizes an online Notary to perform any notarial act as an online notarization.
  2. Clarifies that an electronic document notarized through an online notarization shall be considered an original document.
  3. Requires an online Notary to be located within the geographical boundaries of Ohio at the time of the online notarization.
  4. Authorizes a Notary to perform an online notarization by means of audio-video communication in compliance with the law and any other rules adopted by the Secretary of State for any principal who is located within the territory of the United States.
  5. Authorizes a Notary to perform an online notarization for a principal located outside the territory of the United States only if (a) the act is not known by the Notary to be prohibited in the jurisdiction in which the principal is physically located at the time of the act; and (b) the record is part of, or pertains to, a matter that is to be filed with or is before a court, governmental entity, or other entity located in the territorial jurisdiction of the United States, involves real or personal property located in the territorial jurisdiction of the United States or is part of, or pertains to, a transaction substantially connected with the United States.
  6. Provides that if an online notarization requires a principal to appear before an online Notary, the principal shall appear in person before the Notary and the principal and the Notary shall each sign the record with an electronic signature.
  7. Provides that in performing an online notarization, a Notary must determine from personal knowledge or satisfactory evidence of identity that the principal appearing before the Notary by means of live audio-video communication is the individual that he or she purports to be.
  8. Stipulates that a Notary has satisfactory evidence of identity if the Notary can identify the individual who appears in person before the Notary by means of audio-video communication based on either of the following: (a) remote presentation by the principal of a government- issued identification credential, including a passport or driver’s license, that contains the signature and photograph of the principal, credential analysis of the identification credentials provided and identity proofing of the principal; or (b) verification by one or more credible witnesses who appear in person before the Notary and who can be identified by either personal knowledge or remote presentation of a credential, credential analysis of that credential and identity proofing.

Journal and Recordings of Online Notarizations

  1. Requires an online Notary to maintain one or more electronic journals in which the online Notary records, in chronological order, all online notarizations that the online Notary performs.
  2. Requires the electronic journal to enable access by a password or other secure means of authentication and be in a tamper-evident electronic format complying with the rules of the Secretary of State.
  3. Specifies the following journal entries for every online notarization: (a) the date and time of the notarial act; (b) the type of notarial act; (c) the title or a description of the record being notarized, if any; (d) the electronic signature of each principal; (e) the printed full name and address of each principal; (f) if identification of the principal is based on personal knowledge, a statement to that effect; (g) if identification of the principal is based on satisfactory evidence of identity, a description of the evidence relied upon, including the date of issuance or expiration of any identification credential presented; (h) if identification of the principal is based on a credible witness or witnesses, the name of the witness or witnesses; (i) if the notarization was not performed at the online Notary’s business address, the address where the notarization was performed; (j) a description of the online notarization system used; (k) the fee, if any, charged by the Notary; (l) the name of the jurisdiction in which the principal was located at the time of the online notarization; (m) the recording upon which the identification of the principal is based, as required under division (D)(3) of this section; and (n) any other information required by the Secretary of State.
  4. Prohibits an online Notary from recording a Social Security number in the electronic journal.
  5. Requires an online Notary to: (a) take reasonable steps to ensure the integrity, security, and authenticity of online notarizations; (b) take reasonable steps to ensure that the two-way, audio-video communication used in an online notarization is secure from unauthorized interception; (c) create and maintain a complete recording of the audio-video communication that is the basis for identification of a principal for each online notarization; (d) maintain a backup for the electronic journal and the audio-video recordings of the act; (e) safeguard the electronic journal and all other notarial records by not allowing the electronic journal to be used by another Notary, creating the audio-video recording in a tamper-evident electronic format complying with the rules of the Secretary of State and protecting the electronic journal and audio-video recordings from unauthorized use; (f) surrender or destroy the electronic journal and all other notarial records only by rule of law, by court order, or at the direction of the Secretary of State; and (g) not surrender the electronic journal to an employer upon termination of employment.

Storage and Disposition of Online Notary Journals and Recordings

  1. Provides that an online Notary may use a third party to keep and store the electronic journal and requires the Secretary of State to adopt by rule standards pertaining to the use of such a third party.
  2. Prohibits an employer from retaining the electronic journal of an employee who is an online Notary when the Notary’s employment ceases, but however, provides that an online Notary may make an agreement with a current or former employer to keep and store the electronic journal.
  3. Provides that an online Notary may use any current or former employer approved as a repository by the Secretary of State to meet all applicable repository requirements of law.
  4. Provides that the electronic journal and audio-video recordings shall be maintained by the online Notary during the term of the online Notary’s authorization to perform online notarizations, except when the commission is terminated due to resignation, revocation or expiration without renewal.
  5. Requires an online Notary upon the expiration of the Notary’s authorization to conduct online notarizations to transmit the electronic journal to the Secretary of State or to a repository approved by the Secretary.
  6. Provides that the Secretary of State or repository shall maintain the electronic journal for a period of ten years.
  7. Provides that if the electronic journal is transmitted to a repository, the online Notary shall inform the Secretary of State where the journal is located during this period.
  8. Provides that if the Notary renews the Notary ’s authorization to conduct online notarizations, the Notary shall maintain a new electronic journal beginning on the date the renewal is effective.
  9. Provides that upon resignation, revocation, or expiration without renewal of an online Notary commission, the online Notary shall transmit the electronic journal to the Secretary of State or to a repository approved by the Secretary of State, but clarifies that this requirement does not apply to electronic journals that, as of the date of the resignation or expiration, were no longer kept in accordance with ORC 147.65(F).
  10. Clarifies that if the electronic journal is transmitted to a repository upon resignation, revocation, or expiration without renewal of an online Notary commission, the online Notary shall inform the Secretary of State where the journal is located during this period.
  11. Provides that upon death or adjudicated incompetence of a current or former Notary, the executor or administrator of the online Notary’s estate, the Notary’s guardian, or any other person knowingly in possession of the online Notary’s electronic journal, shall transmit the journal to the Secretary of State or to a repository approved by the Secretary of State.
  12. Provides that the online Notary, the Notary’s personal representative or guardian, or the administrator or the executor of the Notary’s estate shall provide access instructions to the Secretary of State for any electronic journal maintained or stored by the online Notary, upon commission resignation, revocation, or expiration without renewal, or upon the death or adjudicated incompetence of the online Notary, if that person is in possession of such instructions.

Inspection and Copying of Online Notary Journal

  1. Provides that any person may inspect or request a copy of an entry or entries in the online Notary’s journal, provided: (a) the person specifies the month, year, type of record, and name of the principal for the notarial act, in a signed tangible or electronic request; (b) the Notary does not surrender possession or control of the journal; (c) the person is shown or given a copy of only the entry or entries specified; and (d) a separate new entry is made in the journal, explaining the circumstances of the request and noting any related act of copy certification by the online Notary.
  2. Provides that notwithstanding ORC 147.141(A)(5), an online Notary may certify copies made from the online Notary’s electronic journal.
  3. Provides that an online Notary who has a reasonable and explainable belief that a person requesting information from the Notary’s journal has a criminal or other inappropriate purpose may deny access to any entry or entries.
  4. Provides that an attorney authorized to conduct online notarizations shall only allow inspection, or provide copies, of an entry or entries in the attorney’s journal if the requesting party was a principal in the transaction or transactions to which the journal entry or entries apply or if the requesting party is acting on a principal’s behalf.
  5. Allows an attorney to deny a request to inspect or receive copies of a journal entry based on attorney-client privilege.
  6. Provides that the Secretary of State, or a repository approved by the Secretary, shall only allow inspection, or provide copies of, an entry or entries in a journal deposited with the Secretary or the repository by an attorney authorized to conduct online notarizations if the requesting party was a principal in the transaction or transactions to which the journal entry or entries apply or if the requesting party is acting on a principal’s behalf.
  7. Provides that the journal may be examined and copied without restriction by a law enforcement officer, as defined in ORC 2901.01, in the course of an official investigation, subpoenaed by court order, or surrendered at the direction of the Secretary of State.
  8. Notwithstanding ORC 147.65(H)(1), provides that an attorney authorized to conduct online notarizations may object to the examination, or copying, of the attorney’s journal pursuant to ORC 147.65(H)(1) based on attorney-client privilege.

Security of Online Notarizations

  1. Requires an online Notary to take reasonable steps to ensure that any device or software used to create an official electronic signature is current and has not been recalled or declared vulnerable by the device or software’s manufacturer, seller, or developer.
  2. Requires an online Notary to: (a) except as provided by ORC 147.65(D)(5)(b), keep the online Notary’s electronic journal, official electronic signature, and electronic seal secure and under the online Notary’s exclusive control; and (b) use the online Notary’s official electronic signature and electronic seal only for performing online notarizations or notarizations pursuant to ORC 147.591.
  3. Prohibits an online Notary from allowing another person to use the online Notary’s electronic journal, official electronic signature, or electronic seal.
  4. Provides that a third party keeping and storing electronic journals for online Notaries shall immediately, upon discovery, notify the Secretary of State, an appropriate law enforcement agency, and any affected online Notaries of the unauthorized access, modification, transfer, duplication, or use of any electronic journals in the third party’s possession or control.
  5. If notice from a third-party reposition has not already been given pursuant to ORC 147.66(C)(1), provides that the third party keeping and storing electronic journals for online Notaries must immediately, upon discovery, notify the Secretary of State and any affected online Notaries of the loss of any electronic journals in the third party’s possession or control.
  6. If notice from a third-party reposition has not already been given pursuant to ORC 147.66(C)(1) or (2), provides that an online Notary must immediately, upon discovery, notify an appropriate law enforcement agency and the Secretary of State of the unauthorized access, modification, transfer, duplication, or use of the online Notary’s electronic journal, official electronic signature, or electronic seal.
  7. If notice from a third-party reposition has not already been given pursuant to ORC 147.66(C)(1), (2) or (3), requires an online Notary to immediately notify the Secretary of State of the loss of the online Notary ’s electronic journal, official electronic signature, or electronic seal.
  8. Requires an online Notary to attach the online Notary’s electronic signature and electronic seal to the notarial certificate of an electronic document in a manner that is capable of independent verification and renders any subsequent change or modification to the electronic document evident.

Miscellaneous

  1. Raises the fee for the Secretary of State providing a certified copy a Notary commission from $2 to $5.
  2. Prohibits the Secretary of State from charging a fee to a Notary obtaining an electronic seal and signature solely for the purpose of conducting notarizations as described in ORC 147.591.
  3. Repeals many of Ohio’s previous Notary statutes
Analysis:

With the enactment of Senate Bill 263, Ohio becomes the tenth state to authorize online notarizations. But SB 263 is more than an online notarization bill. It reforms Ohio’s antiquated and sparse Notary statutes with provisions related to paper notarizations as well. It requires Notaries to take a course and pass an exam, includes many new standards of practice, and requires applicants to submit to a criminal records check. Notably, SB 263 transfers the commissioning of Notaries from the county courts of common pleas to the Secretary of State. As for the online notarization provisions, the scope of the new laws is quite extensive. As with the most recent enactments, Ohio’s online notarization provisions are informed by the NNA’s Model Electronic Notarization Act, the American Land Title and Mortgage Banker’s Association model law (which draws upon the NNA’s MENA) and enactments of other states. Notably, SB 263 has numerous provisions about the retention, security, storage, and disposition of electronic journals kept for online notarizations and the audio-video recordings that also must be kept.

SB 263 takes effect on the 91st day following enactment, which is March 19, 2019, the new law says the law takes effect six months after that. This will give the Secretary of State needed time to create the rules required by the new law. The NNA projects the operational date as September 19, 2019 and we will update the actual date when it is identified.

Read the bill text.

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