In carrying out their activities, both the Public Administration and companies are required to comply with certain obligations regarding document conservation. With the progress of information technology, it is now possible for these subjects to fulfill these obligations not only by using analogue methods, but also and above all by means of IT tools. In the past, in fact, vast physical environments were required to be used as archives, as well as a huge use of both economic and time resources to ensure correct document management. While with the advent of digitalization it is possible to carry out the same activities in ways that guarantee greater efficiency. In fact, even in business activities, the management of accounting records electronically allows the duties imposed on entrepreneurs to be fulfilled with greater effectiveness and certainty.
There digital preservation and the replacement conservation are among the procedures that have allowed companies to manage all this, today we will focus on the latter, while for an in-depth study on digital preservation and the person in charge of preservation recommend reading this article.
The substitutive conservation of documents in the Public Administration
The pioneering rule that has attributed full legal value to documents formed using IT or telematic tools and to contracts stipulated by private individuals and the PA according to the same procedures is contained in Law no. 59/1997. This principle, now established in our legal system, has had a largely revolutionary significance in the performance of the activities of public bodies. In fact, in this way, in addition to a reduction of the physical spaces concretely necessary for document conservation, as mentioned above, the achievement of the transparency objectives and efficiency of the Public Administration.
Today the Digital Administration Code (CAD, Legislative Decree no. 82/2005) represents the cornerstone of the discipline in question. One of the first problems attributable to the use of IT tools, highlighted by the CAD in art. 20, is the need to guarantee the traceability of the electronic document to the person who produced it in uniquely. Furthermore, in order to satisfy the conservation obligations in the case of electronic documents, it is essential that the related management and conservation operations are carried out in a manner suitable for guaranteeing the compliance of the documents to the originals (art. 43, CAD).
The importance attributed to the use of IT resources in the procedures of the Public Administration is also evident from the fact that a specific Authority has been established in our legal system, with wide-ranging powers and functions on the subject. Agid, the Agency for Digital Italy, is responsible for supervising the entire digital transition process and guiding it through the adoption of guidelines (art.71, CAD).
Still on the subject of digital transformation and public administration we report the article on the new guidelines for smart working in the PA, click here.
Guarantees of integrity and immutability of the IT document
The technological innovations that have allowed, more than any other, the spread of the use of the electronic document are the various mechanisms existing today for affixing the signature. In fact, as established by Agid, the alternative use of a qualified electronic signature, a digital signature or a qualified electronic seal or advanced electronic signatureallow to guarantee for all legal purposes integrity and immutability of the electronic document on which they are affixed. But this is not enough. In order for the documents thus formed to have full legal value, it is essential that they are kept by means of document management systems equipped with adequate security measures. Among others, for example, the pseudonymisation and encryption of personal data contained in documents (Article 32, GDPR) represents a suitable method for guaranteeing the security of management systems.
Another essential mechanism to ensure the origin and date of formation of an electronic document is the insertion of metadata Associates. Particular importance is attached to the procedure time validation through which the certain time and date of its creation are associated with each document, the latter having full probative value vis-à-vis third parties. For the affixing of the time stamp the participation of an external certification service provider is required, authorized to generate it and uniquely associate it with the related IT document.
A person is identified in each public body to whom the function of responsible for the management of IT documents. The latter, once the documents have been formed, and after the proceeding Administration has closed the related IT files, takes care of transferring them from the management system to the digital preservation system. The latter must possess adequate characteristics that ensure the conservation of theauthenticity, integrity, reliability, legibility and availability of the documents contained therein (Article 44, CAD). In fact, every document kept by the Public Administration must be legible at any time in the replacement storage system, or it must be able to be provided in paper format if explicitly requested.
The new problems of digital document conservation
The digitization of administrative procedures opens the way to a series of critical profiles that in the past were not even taken into consideration. If you think about the phenomenon oftechnological obsolescence, one immediately senses the need for all data stored by public administrations to be collected in file formats that allow their use by any other person requesting access. Therefore, it is imperative that it be guaranteed interoperability of IT systems used by public bodies (Article 12, paragraph 2 and Article 14, Legislative Decree No. 82/2005, CAD).
In fact, in choosing the file format to be used in its document management, each entity must evaluate its interoperability, taking as the ideal model the “Open, non-proprietary, standard formats de iureextensible, talking, completely robust, independent of the device ” (AGID guidelines on the IT document, par. 3.6). When these characteristics are not respected, and the chosen format deviates from the proposed model, then the risks of lock-in technological and the future transfer of the same data in another format will be made more complex.
Digital preservation in the company
The rules prepared to govern the management and conservation of documents by means of IT methods in the Public Administrations, are also used in our legal system for the purposes of keeping accounting records by companies. A provision of the Civil Code, introduced in 2008, allows entrepreneurs to form and keep documents, such as accounting books, records, directorieswhose drafting they are required by law, through the use of IT tools (Article 2215-BIS cc). In this way we try to facilitate the fulfillment of these obligations, reducing the related administrative costs. Furthermore, an attempt is made to make the control operations and access to the accounting documentation by the tax and customs authorities more effective.
Also in this case it will be necessary to associate the documents with metadata formats, such as the time stamp and the digital signature of the entrepreneur, so as to also satisfy the progressive numbering and endorsement obligations envisaged. The entrepreneur, however, proceeds in this sense annually, producing a file that contains all the data of the reference exercise period, digitally signs it and affixes the time stamp. At the end of the digital preservation process, the person in charge of the preservation also inserts his own digital signature. Documents thus formed will have full evidential effectiveness towards the same entrepreneur to whose business they refer and in the relations between these and other entrepreneurs.
The person in charge of the substitutive conservation
From the above, a fundamental figure in the conservation process can be identified. It is, in fact, the person in charge of conservation (Article 44, Legislative Decree No. 82/2005, CAD). Within the Public Administration, he is a manager or an internal officer who is formally designated and who possesses adequate skills in the field of law, information technology and archiving. The role can also be performed by the same person who performs the functions of the document manager. While, for private subjects to whom the law prescribes conservation obligations, this role can also be covered by a subject external to the business organization, who must also be a third party towards the conservator. Its main tasks include: that of defining conservation policies, managing the conservation process, generating the payment report, periodically checking and verifying the correct functioning of the system and the readability of the documents contained. These charges will remain with the conservation manager even when an external conservator is chosen for the management of the activities (par. 4.5, AGID Guidelines on the IT document).
Possible criticalities of the conservation system for entrepreneurs
The discipline analyzed, as has been pointed out, has been designed to allow for the simplification of bureaucratic burdens and the reduction of the costs of managing and storing documents. In fact, however, it would seem to produce an increase in costs for small and medium-sized enterprises. In fact, in order to adapt to the rules on digital preservation, these would have to face huge initial fixed costs to equip themselves with the necessary hardware and software and to train their staff in their correct use.
In any case, the application of these tools by the Public Administration contributes to the achievement of the objectives of transparency and efficiency of the administrative activity.
Ultimately, substitutive conservation represents an inevitable technological innovation, which is part of the digitization process of more and more aspects of reality and therefore is a fundamental step for technological and social progress.
From 1 January 2022 it is mandatory to have the figure in charge of digital preservation in the company (can also be an external figure) for more information ed other corporate obligations of 2022 read this article.
If you need support or more information for your company or public administration you can contact our Partner FCLEX Law Firm in Bologna, asking by the lawyer Giuseppe Croariexpert in IT law and new technologies.