Legal Framework for Electronic Archiving
Although some countries require certain types of documents to be kept and archived in their original paper form, for most categories of documents, including HR-related records, there is no such requirement, and it is generally acceptable to use electronic versions of paper records (i.e., scanned copies of paper originals) during most government agencies’ inspections and audits or in court proceedings.
The evidential or probative value of electronic versions of paper records may be more easily challenged before a court than it would be for the originals. This is mainly because the original records could be tampered with or changed before being scanned, and, unless proper technology has been used (e.g., encryption and timestamping), it may not be easy to detect such changes from a scanned copy. In specific situations, it may be good practice for employers to retain archives of paper originals in the event such originals would be requested by a specific investigator, auditor, judge or authority.
Are electronic scanned copies of paper originals legally valid?
Yes. Per the Colombian General Procedure Code (Art. 244), all versions of a document (original, copies, photos, scans, etc.) are recognized as valid and authentic. In addition, Article 5 of Law 527 of 1999 stipulates that no information of any kind shall be denied legal effect, validity, or binding force solely for being in the form of a data message. Therefore, a copy of a record has the same probationary value as the original record. If a document is questioned in court, the individual disputing the record’s validity must offer evidence/proof before a judge, otherwise the document is considered to be valid.
Are there any legal requirements for electronic archiving systems (EAS)?
Colombia doesn’t currently have a regulatory framework for electronic archiving. Security measures are determined by the employer or the business. In practice, companies migrating from physical to electronic archiving systems often incorporate recommendations issued by Colombia’s Ministry of Technology. These recommendations are not mandatory.
Some employers also use Decree 1080 of 2015 as a general reference for electronic archiving best practices. The Decree establishes parameters for public entities managing electronic documents, and is not binding on private entities. Guidelines in the Decree include ensuring a record’s authenticity, reliability, integrity and availability.