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?
The Electronic Transactions Ordinance, 2002 (ETO 2002) recognizes the validity of electronic documents, and sets requirements for documents, records, information, communications and transactions in electronic form. Under the ETO (Sec. 3), documents, records, information, communications and transactions will not be denied legal recognition/admissibility/effect/validity/proof/enforceability solely on the grounds that it was provided in electronic form and has not been attested to by a witness. Therefore, electronic scanned copies of paper originals are admissible as evidence and are generally legally valid. While there are certain instances where the ETO 2002 would not apply (ex., wills, contracts for sale/conveyance of Immovable Property), these exceptions generally would not be relevant for HR related documents.
ETO 2002 (Sec. 5) provides that documents are considered to be presented or retained in their “original” form if:
- there exists reliable assurance as to the integrity of a document from the time when it was first generated to its final (retained) form;
- the presentation of the document is capable of being displayed in a legible form.
The integrity of a document or transaction is assessed on whether the document has remained complete and unaltered, except for any endorsement or change arising from the normal course of communication, storage, or display (ETO 2002, Section 5.2).
Note that the Stamp Act 1899 requires that official stamps be affixed to certain documents for validity. As it’s not currently clear whether the ETO 2002 eclipses the Stamp Act 1899 requirements, the stamp duty should be paid when required as a best practice, regardless of the form of the document.
Are there any legal requirements for electronic archiving systems (EAS)?
ETO 2002 (Sec. 6) sets certain requirements for the electronic retention of records, documents, communications or transactions, including that:
- the content remains accessible for future reference;
- the content and form accurately represents the content and form in which the information was originally generated, sent or received; and,
- the system allows the origin and destination to be identified and, also retains the date and time when it is generated/sent/received.
HR Best Practices: Under the ETO 2002, there are no specific requirements or obligations to retain records in hard copy form. In addition, the ETO 2002 (Sec. 3) grants legal recognition to electronic forms, making electronic records admissible in court and legally valid. That said, the full electronic archiving era is approaching. For now, it is not possible to guarantee that all paper documents can be destroyed.