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?
There are no general legal or regulatory frameworks for electronic archiving in Portugal. That said, there are a few Decree-Laws that regulate the archiving of specific types of documents and certification:
- Invoices and related tax documents are regulated under Decree-Law no. 28/2019 of 15th February 2019.
- The archiving of Public Administration Services, Municipalities, Private Charities and other relevant public entities is regulated by Decree-Law no. 447/88 of 10th December 1988. This Decree-Law gives authenticated microcopies the same probationary value of paper originals.
- Certification of hard copies is regulated under Decree-Law no. 28/2000 of 13th March 2000, and Decree-Law no. 207/95 of 14th August 1995.
Electronic scanned copies are legally allowed in Portugal, but the paper original should be retained in case it is requested for evidence. "[P]hotographic copies of documents filed at notarial offices or other public offices have the probative value of the certificates of contents if their conformity with the original is attested by the competent authority to issue the latter" and "photographic copies of documents from the archives mentioned have the value of the public form if their conformity with the original is certified by a notary" (Article 387, Civil Code).
Are there any legal requirements for electronic archiving systems (EAS)?
There are no general legal requirements for electronic archiving systems. To increase the validity of any electronically-stored records, consider the following:
- How the electronically scanned record was generated, stored and transmitted. Records should be stored in an un-erasable medium and businesses should retain a backup copy in a separate location. Employers may designate specific individuals to manage electronic records.
- The continued integrity and reliability of the stored data. Electronic archiving systems should be periodically maintained to ensure ongoing reliability.
HR Best Practices: The full electronic archiving era is approaching, but for now it is not possible to guarantee that paper documents in Portugal can be destroyed (unless authenticated microfilm is used). Indeed, the acceptance of digital copies remains subject to the discretion of the judge.
Similar to the electronic signature, electronic archiving will probably also develop to a three-level structure: simple, advanced and certified archiving. Over time, this means that certified electronic archiving will make the burden of proof fall under the responsibility of the challenging party.