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?
Electronically scanned copies are legally allowed, but the paper original should be retained as there is currently no legal framework in Portugal to permit the deletion of paper originals after records are scanned. Right now, authenticated microfilm is the only option that allows an effective release of the original paper documentation. Copies obtained from authenticated microcopy have the legal force of the original (Article 3, Law no. 447/88 of Dec. 10).
In courts, the legal validity of a record depends on the recognition of its authorship and signature (Article 376 (1) Civil Code)). In addition, "photographic 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).
Are there any legal requirements for electronic archiving systems (EAS)?
There are no specific, 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 should 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.
Led by PeopleDoc’s Chief Legal & Compliance Officer, the HR Compliance Assist team relies on a network of internal and external compliance experts and lawyers, including the global law firm Morgan Lewis, to provide clients with best practices and recommendations on topics such as HR document retention, employee data privacy, and HR electronic records. HR Compliance Assist also provides local compliance monitoring and alert services in select countries where PeopleDoc’s customers have employees. HR Compliance Assist is a service exclusively available to PeopleDoc customers.