Know your retention policies?....

The whole issue of legal retention periods within the UK is complex and sometimes contradictory. There are a number of publications which identify some retention requirements; a useful and up to date list of a significant range of these can be found in "The ICSA Guide to Document Retention". This regularly updated publication details the retention requirements for most general types of document, including those related to Companies law, meetings and minutes, accounting and tax records, employment and pension records, health and safety, contracts and property records and financial services records.

There is also legislation related to the retention of personal information. The 5th Principle of the Data Protection Act 1998 requires that personal information is retained 'for no longer than is necessary'.

Such a requirement is another reason why formal retention policies and schedules are essential for all organisations. Some of the required retention periods are very long, often decades, which raises other issues that should be considered as part of a properly defined retention policy. If you are using electronic media will it still be readable and will the electronic format be accessible when the electronic document is needed? It is important that authenticity and integrity of the information is not compromised by media migrations or format conversions.

E-Mails Within UK legislation, an e-mail is a document, and can (depending upon its content) be an organisational record. The fact that the document is an e-mail (or an attachment to an e-mail) is of no particular relevance. E-mail is normally considered as legally admissible within UK courts. In order to ensure that sufficient evidential weight is afforded to e-mails, the electronic systems which manage them must be reliable and must have sufficiently robust audit trails in order to provide evidence of this reliability. A section of BIP 0008-2:20085 deals specifically with the management of e-mail systems. Where proof of electronic identity is important, then BIP 0008-3:20086 gives good practice advice.

Electronic Invoices HMRC issued guidance on electronic invoicing in June 2007. This guidance is aimed at the issuing, receiving and storing of VAT invoices in an electronic format. The guidance comments that "the law does not compel you to use electronic invoicing. It's up to you whether you issue paper or electronic VAT invoices". There is also no requirement (since January 2006) to notify the HMRC that electronic VAT invoicing will be used. There is additional advice about "dual systems" (e.g. both paper and electronic); these are only allowed during controlled trials of the electronic system. Once the trials are complete, the electronic VAT invoice is the "legal document". Importantly, the guidance stresses authenticity and integrity of the electronic invoice by commenting that "you may invoice electronically where the authenticity of the origin and integrity of the invoice data are guaranteed".

Destruction of original documents Another discussion on storage formats that has taken place in the UK has been the legal position with the destruction of original documents if they have been scanned. Again, no formalised conclusion has been reached on this issue, but many organisations have taken the decision following a risk assessment and are destroying paper originals based on the low risks involved and the (often) significant enhancements to business processes achievable.

An important factor that will feature in the risk assessment and resulting policies and procedures, where the decision to destroy paper originals is taken, is the timing of the destruction relative to the scanning processes. For many years, UK organisations have been scanning original documents and storing the resultant images on microfilm of various formats. Such a process has rarely been challenged in court. Where evidential weight is important, microfilming processes compliant with 'BS 6498:2002 Guide to the preparation of microfilm and other microforms that may be required as evidence' have been used to resist legal challenges. The equivalent for electronic scanning and storage processes is 'BS 10008:2008 Evidential weight and legal admissibility of electronic information - Specification'. BIP 0008-1:20048 has been submitted to ISO and is now published as 'ISO 15801:2009 Information stored electronically, recommendations for trustworthiness and reliability'.

In all cases where original documents have (or have not) been destroyed after microfilming / scanning, the 'best evidence' rule may be used. This rule talks about the fact that evidence may not be admitted in court if it is not "the best that the nature of the case will allow". This translates, in document management terms, to the fact that the best evidence is always the original document. However, if it can be shown that the original document does not exist, then an authentic copy of the original will be the best evidence. In practice, all relevant evidence is admitted, whether it is an original or a copy. The goodness or badness of the evidence goes only to weight, and not to admissibility.

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