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?
Electronic scanned copies of paper records are generally valid in Romania, subject to certain probationary value restrictions, except when written form is specifically required by law. Romanian courts have interpreted scanned documents that are intelligible and show sufficient warranties to establish belief over the document’s content and the identity of the signer as having been signed with a simple electronic signature (see the e-Signature document for details on the eIDAS Regulation).
Electronic copies of scanned paper records will generally have the following probationary value, unless a specific form is required under a legal act:
- if the scanned copy is a reproduction of a document for which written form is required only for ensuring proof of the agreement, the scanned copy will be deemed a commencement of proof in writing and can be used in court in conjunction with other evidence (e.g., witnesses, presumptions) to prove an agreement between parties;
- if written form is not required to show the validity of the record and is also not required for proof, a scanned copy is sufficient, and no additional methods of proof will be necessary. That said, an employee (or other party) may require the original to compare it against the scanned copy. If the party invoking it is unable to provide the original, the scanned copy will only be considered a commencement of proof.
If a scanned copy of a paper original is electronically archived per the requirements of the Electronic Archive Law, the manager of the electronic archive will need to certify the document per the provisions of the law (Art. 7). Note that employee-related electronic documents can be stored informally and, if stored informally, would not need to comply with the Electronic Archive Law. Informally stored employment records would not have the same probative value if questioned in court as a record archived in compliance with the Electronic Archive Law.
Are there any legal requirements for electronic archiving systems (EAS)?
There are no specific requirements for storage in the cloud under Romanian law. Employers should follow the general requirements under the General Data Protection Regulation and implement appropriate technical and organizational measures. In cases where the paper original is specifically required by law, employers can store electronic copies in addition to the paper original.
HR Best Practices: The full electronic archiving era is approaching, but for now it is not possible to guarantee that all paper documents can be destroyed. 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.