Do Tennessee notaries public have to keep a record of every notarization, even when they don't charge a fee, and can it be electronic?

Plain-English summary

Before October 1, 2014, Tennessee's notary statute, Tenn. Code Ann. § 8-21-1201, tied the duty to record notarial acts to the notary's right to collect a $1 fee for the recording. If the notary did not collect the fee, the recording requirement was, in practice, not triggered.

Public Chapter 805 of 2014 changed that. It rewrote § 8-21-1201 to provide that notaries "are entitled to demand and receive reasonable fees and compensation" for their services and, separately, "shall keep a record in a well-bound book of each of the notaries public's acts, attestations, protestations, and other instruments of publications." The amendment also deleted the parallel fee-based recording provision in § 8-16-118.

The AG concluded that the new recordkeeping duty applies regardless of whether the notary collects a fee for the underlying act. The two provisions, the fee right and the recording duty, are now independent.

On the second question, the AG concluded that notaries may keep the required record electronically rather than in a literal bound book. The reason is the public-records-electronic-maintenance statute, Tenn. Code Ann. § 10-7-121(a)(1), which allows any information required to be kept as a record by a government official to be maintained on a computer or removable storage if four conditions are met: (1) public inspection availability, (2) due care for retention, (3) daily backup with off-site storage of week-old backups, and (4) the official can produce a paper copy on request. Because notaries are public officials and their record is a public record, § 10-7-121 applies.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: When did the new recordkeeping rule take effect?
A: October 1, 2014, per § 6 of 2014 Tenn. Pub. Acts, ch. 805.

Q: Does the recordkeeping duty apply to free notarizations done as part of a job?
A: Yes. The AG concluded that recording is required for every notarial act, irrespective of whether a fee or other compensation is collected. The duty is separate from the entitlement to collect a fee.

Q: What has to be recorded?
A: Each of the notary's "acts, attestations, protestations, and other instruments of publications," using the same statutory language. The statute doesn't prescribe a particular content set; the opinion doesn't address what specific fields must be captured.

Q: Can it be a spreadsheet or notary-management software?
A: Yes, if the four conditions in § 10-7-121(a)(1) are met. The record must be available for public inspection (subject to applicable confidentiality limits), must be retained with due care, must be backed up daily with off-site storage of week-old backups, and must be producible in paper form on request.

Q: Why are notaries treated as public officials here?
A: The Tennessee Supreme Court held in Wheeler v. State, 56 Tenn. 393 (1872), that when a notary keeps a book of record, the act has the effect of an act performed by a public officer under official oath. In re Marsh, 12 S.W.3d 449 (Tenn. 2000), confirmed that "a notary is a public official of the state of Tennessee." The opinion notes that 2014 Pub. Ch. 805 changed the language from "commissioned" to "approved" for notary appointments, but observed that this does not alter the public-official status.

Q: Is the notary's record a public record?
A: Yes. Under § 10-7-503(a)(1)(A), the records made by a public official as part of his or her statutory duties are public records. The opinion notes the same conclusion in 66 C.J.S. Notaries § 15.

Q: What about admissibility?
A: Tenn. R. Evid. 1005 allows admission of a certified copy of an official record, "including data compilations in any form," so electronic records that comply with § 10-7-121 should be admissible.

Background and statutory framework

Tennessee's notary statute evolved away from a fee-linked recording obligation toward a free-standing public-record duty. The pre-2014 structure was a vestige of an era when small fees were the primary mechanism that incentivized public-records compliance. Modern records management leaves that mechanism behind: every notarial act is now expected to be captured in a recordkeeping system, with fees governed separately.

The bridge between a "well-bound book" requirement and electronic records is § 10-7-121, which authorizes electronic maintenance for any record a government official is required to keep. The four-condition test in § 10-7-121(a)(1) is general (it applies across state and local government records) and is the standard pathway for moving from paper-statute language to electronic recordkeeping. Once the AG established that notaries are public officials, their records are public records, and § 10-7-121 applies to those records, the electronic-recordkeeping conclusion followed.

Citations and references

Statutes:
- Tenn. Code Ann. § 8-16-102 (notary public approval; as amended)
- Tenn. Code Ann. § 8-21-1201 (notary fees and recordkeeping; as amended)
- Tenn. Code Ann. § 10-7-121 (electronic maintenance of public records)
- Tenn. Code Ann. § 10-7-503(a)(1)(A) (public records definition)
- Tenn. R. Evid. 1005 (admissibility of public-records copies, including data compilations)
- 2014 Tenn. Pub. Acts, ch. 805 (Public Chapter 805)

Cases:
- Wheeler v. State, 56 Tenn. 393 (1872) (Tennessee Supreme Court; notary record as public-officer act)
- In re Marsh, 12 S.W.3d 449 (Tenn. 2000) (Tennessee Supreme Court; notary is public official)

Earlier AG opinion:
- Tenn. Att'y Gen. Op. 07-157 (Nov. 26, 2007)

Subject

Opinion No. 14-89, Duty of Notary Public to Maintain Record, September 29, 2014

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2014/op14-089.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
September 29, 2014
Opinion No. 14-89
Duty of Notary Public to Maintain Record

QUESTIONS

1. Is a notary public required to keep a record of each of the notary public's acts, attestations, protestations, and other instruments of publication regardless of whether the notary public charges a fee for his or her services?

2. If the answer to Question 1 is yes, is a notary public required to keep an actual bound book, or is it sufficient for the notary public to keep a record of his or her acts in another recorded format, e.g., an electronic record?

OPINIONS

1. Yes. Beginning October 1, 2014, notaries public are required to maintain "a record in a well-bound book of each of the notaries public's acts, attestations, protections, and other instruments of publication" regardless of whether the notary public receives a fee or compensation for his or her services.

2. So long as the information kept in the notary public's record is available for public inspection and other conditions are met, such information may be maintained in any appropriate electronic medium.

ANALYSIS

1. 2014 Tenn. Pub. Acts, ch. 805 ("Chapter 805"), amends Tenn. Code Ann. § 8-21-1201 to provide as follows:

Notaries public are entitled to demand and receive reasonable fees and compensation for the notaries public's services. The notaries public shall keep a record in a well-bound book of each of the notaries public's acts, attestations, protestations, and other instruments of publications.

Chapter 805, § 5. This provision becomes effective October 1, 2014. Id. § 6.

Prior to this amendment, Tenn. Code Ann. § 8-21-1201 provided that notaries public were entitled to demand and receive a fee of $1.00 "[f]or recording in a well-bound book, to be kept by the notary for that purpose, each attestation, protestation, and other instrument of publication." Chapter 805 deleted this section in its entirety; it also deleted Tenn. Code Ann. § 8-16-118, which similarly allowed a notary public a fee of $1.00 "for recording in a well-bound book . . . each of the notary's attestations, protestations, and other instruments of publication."

This language tied the notary's receipt of a fee directly to the duty to record in a well-bound book. But under Public Chapter 805, the duty to "keep a record in a well-bound book of each of the notaries public's acts, attestations, protestations, and other instruments of publications" is separate and distinct from the authority to receive reasonable fees and compensation for services provided. Based on the plain language of Chapter 805, beginning October 1, 2014, a notary public is required to keep a record of his or her acts in a well-bound book regardless of whether the notary public receives a fee or compensation for his or her services.

2. The Tennessee Supreme Court has held that when the act of keeping a book of record is performed by a notary public, "it shall have the effect of an act performed by a public officer, under his official oath." Wheeler v. State, 56 Tenn. 393, 396 (1872); see In re Marsh, 12 S.W.3d 449, 453 (Tenn. 2000) ("A notary is a public official of the state of Tennessee . . . ."); see also Tenn. Att'y Gen. Op. 07-157, at 1 (Nov. 26, 2007) (opining that "a notary public is a state official whose duties are prescribed by statute"). The record kept of a notary public's official acts is therefore a public record. See e.g., Tenn. Code Ann. § 10-7-503(a)(1)(A) (defining "public record"); see also 66 C.J.S. Notaries § 15 ("Under statutes which require notaries to keep records of all, or certain, of their official acts, the record is a public one . . . .").

Tenn. Code Ann. § 10-7-121 provides that "any information required to be kept as a record by any governmental official may be maintained on a computer or removable computer storage media, including in any appropriate electronic medium, instead of books or paper records if the following standards are met:"

(A) Such information is available for public inspection, unless it is a confidential record according to law;

(B) Due care is taken to maintain any information that is a public record during the time required by law for retention;

(C) All daily data generated and stored within the computer system shall be copied to computer storage media daily, and the newly created computer storage media more than one (1) week old shall be stored at a location other than at the building where the original is maintained; and

(D) The official can provide a paper copy of the information when needed or when requested by a member of the public.

§ 10-7-121(a)(1) (emphasis added). So long as the information required to be kept by Tenn. Code Ann. § 8-21-1201 is available for public inspection, therefore, and the other statutory conditions are satisfied, a notary public may maintain that information in electronic form, rather than the "well-bound book" called for by the statute. See also Tenn. R. Evid. 1005 (providing for admission of a certified copy of the "contents of an official record, . . . including data compilations in any form").

ROBERT E. COOPER, JR.
Attorney General and Reporter

JOSEPH F. WHALEN
Acting Solicitor General

JANET M. KLEINFELTER
Deputy Attorney General

Requested by:
The Honorable Tre Hargett
Tennessee Secretary of State
State Capitol
Nashville, TN 37243-0305