We offer here an article by Giusella Finocchiaro which was published in the March issue of the newsletter of the online magazine “ICT4Executive”.
The conservation of electronic documents raises a number of doubts among professionals in terms of procedure and related legal issues. Here we will try to clarify the main features of the topic by means of specific questions and answers.
What are the main rules regarding the conservation of electronic documents in Italy?
The Digital Administration Code, recently amended by Legislative Decree no.235 of December 30, 2010, regulates the composition, management and conservation of electronic documents. With particular regard to conservation, the primary law reference is art. 43, which establishes the general principle of freedom of the form of conservation of electronic documents, establishing that ” when stored in digital form, records kept in archives, accounting records, correspondence, and any act, document or data, the conservation of which is required by law or regulation, are valid and relevant with full legal effect if their reproduction and conservation over time are managed so as to guarantee they conform to the original documents in compliance with the technical regulations provided for by Article 71”. Naturally, if the documents have originally been produced in a digital format, it follows that the logical form of conservation for said documents must be digital. Therefore, the process of electronic storage of documents can affect both electronic and analogical documents.
How does the process of conservation work?
The procedure is carried out by storing on optical media the document itself in the case of electronic documents, or its image in the case of analogical documents. The process is completed by affixing, the time reference and the digital signature of the data custodian on the set of documents, which guarantees the proper conduct of the process. The requirements of the system of conservation are set out in art. 44 of the Digital Administration Code: in particular, there must be reliable identification of both the individual who composed the document and also that of the reference administration or organization. The integrity and legibility of the document and the availability of information to identify it must also be guaranteed. In the light of these regulations we can affirm that in invoking the principle of freedom of the forms of conservation, the law grants a broad area of autonomy. It is in fact up to the interested parties to fully establish the procedures of conservation.
What are the main new regulations regarding conservation?
Among the main new features introduced in the Legislative Decree of December 30, 2010, particular importance must be given to the provision under Art. 44 bis of the Digital Administration Code. The regulation provides for entrusting the activity of conservation and certification to public and private bodies, who may also seek accreditation from DigitPA. Also worthy of note is the provision under Art. 44, paragraph 1 bis, according to which the data custodian works in consultation with the data controller.
Does the conservation of documents raise questions relating to personal data protection laws?
It is necessary to fit the data custodian into the context of the protection of personal data. In fact, we should ask ourselves whether the data custodian has independent control over the process or whether he is merely responsible for the process. This is a question of no little importance considering the fact that the process of conservation can be entrusted to a third party with an outsourcing contract.
So what should the right approach to this issue be?
It should be as open an approach as possible, considering that the law places fewer restrictions than is thought. In fact, the law provides the tools, but does not place restrictions on the freedom of the interested parties to define procedures. So, plenty of scope for autonomy of negotiation.