Montana Code 1-5-618. Audiovisual recordings — notary public journal — security and retention
1-5-618. Audiovisual recordings — notary public journal — security and retention. (1) (a) If a notarial act is performed using communication technology, the notarial officer shall make an audiovisual recording of the entire communication.
Terms Used In Montana Code 1-5-618
- Communication technology: means a real-time, two-way audiovisual electronic device or process that:
(a)allows a notarial officer located in this state and a remotely located individual to communicate with each other simultaneously by sight and sound;
(b)facilitates communication with a remotely located individual with a vision, hearing, or speech impairment when necessary under and consistent with applicable law; and
(c)complies with this part and implementing rules. See Montana Code 1-5-602
- Electronic: means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities. See Montana Code 1-5-602
- Electronic notarization system: means a set of applications, programs, hardware, software, or technologies designed to enable a notary public to perform electronic notarizations that renders every electronic notarial act tamper-evident through the use of a security procedure and that meets the requirements of this part and implementing rules. See Montana Code 1-5-602
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Fraud: Intentional deception resulting in injury to another.
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- Identification credential: means a government-issued record evidencing an individual's identity. See Montana Code 1-5-602
- Knowingly: means only a knowledge that the facts exist which bring the act or omission within the provisions of this code. See Montana Code 1-1-204
- Notarial act: means an act, whether performed with respect to a tangible or electronic record, that a notarial officer may perform under the law of this state. See Montana Code 1-5-602
- Notarial officer: means a notary public or other individual authorized to perform notarial acts. See Montana Code 1-5-602
- notary: means an individual commissioned to perform a notarial act by the secretary of state. See Montana Code 1-5-602
- Person: means an individual, corporation, business trust, statutory trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity. See Montana Code 1-5-602
- Principal: means :
(a)an individual whose signature is notarized; or
(b)an individual taking an oath or affirmation from the notary public but not in the capacity of a credible or other witness for the notarial act. See Montana Code 1-5-602
- Record: means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form. See Montana Code 1-5-602
- Signature: means a tangible symbol or an electronic signature that evidences the signing of a record. See Montana Code 1-5-602
- Sole control: means at all times being in the direct physical custody of the notarial officer or safeguarded by the notarial officer with a password or other secure means of authentication or access. See Montana Code 1-5-602
- State: means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. See Montana Code 1-5-602
- Tamper-evident: means that any change to a record must provide evidence of the change. See Montana Code 1-5-602
(b)Except as provided in subsection (1)(d)(ii), a notarial officer must keep sole possession of an audiovisual recording.
(c)(i) A notarial officer shall allow a person to inspect or obtain a copy of an audiovisual recording if:
(A)the requester 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 notarial officer does not surrender possession or control of the original recording;
(C)the requester is shown or given a copy of only the recording specified; and
(D)the notarial officer is satisfied that the requester has reasonable purpose directly relating to the notarization.
(ii)A recording may be examined and copied without restriction by a law enforcement officer in the course of an official investigation, subpoenaed by court order, or surrendered at the direction of the secretary of state.
(d)(i) Except as provided in subsection (1)(d)(ii), a notarial officer shall retain an audiovisual recording for 10 years from the date of the recording.
(ii)A current or former notarial officer may transmit the audiovisual recording to a repository approved by the secretary of state.
(2)(a) A notary public shall maintain one or more journals in which the notary public chronicles all notarial acts that the notary public performs.
(b)A journal may be created on a tangible medium or in an electronic format to chronicle all notarial acts, whether those notarial acts are performed regarding tangible or electronic records. The format of a journal maintained on a tangible medium must be a permanent, bound register designed to deter fraud. A journal maintained in an electronic format must be in a permanent, tamper-evident electronic format that complies with the rules adopted by the secretary of state.
(3)An entry in a journal must be made contemporaneously with performance of the notarial act and contain:
(a)the date and time of the notarial act;
(b)a description of the record,including the date of the record if indicated, and the type of notarial act;
(c)the full name and address of each principal;
(d)the signature of each principal, except:
(i)transcripts of depositions and certified copies do not require the signature of the individual for whom the notarial act is performed; and
(ii)if the notarial act is performed using communication technology, the journal record must reference the storage location of the audiovisual recording in lieu of the signature of the principal;
(e)if the identity of the principal is based on personal knowledge, a statement to that effect;
(f)if the identity of the principal is based on satisfactory evidence, a brief description of the method of identification and the identification credential presented, if any, including the date of issuance or expiration of any identification credential;
(g)if the notarial act is performed using an electronic notarization system or communication technology, or both, a notation identifying the system or technology, or both; and
(h)the fee, if any, charged by the notary public.
(4)A notary public may not record in the journal a social security number, passport number, driver’s license number, birth date, or any other information prohibited by the secretary of state. A notary public may include other information descriptive of the record, including the number of pages in a document, whether the document was written in a foreign language, or other information pertaining to the record that is not otherwise prohibited by law or rule.
(5)(a) Except as provided in subsection (9)(b), a notary public shall keep sole control of the journal and all other notarial records and surrender or destroy them only as authorized by law or rule, by court order, or at the direction of the secretary of state.
(b)A notary public may not allow the notary’s journal to be used by any other notary and may not surrender the journal to an employer upon termination of employment without the approval of the secretary of state. An employer may retain a copy of the journal of an employee who is a notary after the notary’s employment ceases if the journal contains records of notarial acts performed within the scope of the notary’s employment.
(6)(a) Any person may inspect or obtain a copy of an entry in a notary public’s journal if:
(i)the person specifies in a signed tangible or electronic request the month, year, type of record, and name of the principal;
(ii)the notary public does not surrender possession or control of the journal;
(iii)the person is shown or given a copy of only the entry specified; and
(iv)the notary is satisfied that a person requesting the inspection or copy does not have a criminal or other illegal purpose for inspecting the entry or obtaining the copy.
(b)A journal may be examined and copied without restriction:
(i)by a law enforcement officer in the course of an official investigation;
(ii)if subpoenaed by court order; or
(iii)at the direction of the secretary of state.
(7)A notary public shall promptly notify the secretary of state on discovering that the notary public’s journal is lost or stolen.
(8)A notary public shall notify the secretary of state of the journal’s location upon resignation of a commission or if the notary public’s commission has been revoked or suspended.
(9)(a) Except as provided in subsection (9)(b), a notary public shall retain a journal for 10 years after the performance of the last notarial act chronicled in the journal.
(b)A former notary public may transmit the journal to a repository approved by the secretary of state.
(10)On the death or adjudication of incompetency of a current or former notary public, the notary public’s personal representative or guardian or any other person knowingly in possession of the notary public’s journal or audiovisual recordings shall transmit all journals and recordings to a repository approved by the secretary of state.
(11)Upon revocation of a notary public’s commission, the notary shall transmit the notary’s journal and audiovisual recordings to a repository approved by the secretary of state.
(12)If Montana supreme court rules governing conduct by members of the bar, including the rules of professional conduct and ethics opinions, prohibit compliance by an attorney licensed by the supreme court with any provision of this section, that provision does not apply to the attorney.