BIP 0008 Legal Admissibility and record retention

The question we are most often asked is: can I destroy the original documentation once it has been scanned?

And the answer is, as long as you follow the correct process in committing your records to digital image: YES.
 
The guidance that should be followed when converting paper records to electronic format depends upon the type of records being scanned: for general business records which need to be retained for 6 years for VAT inspection purposes HMRC guidance should be followed. IFAs and investment companies requirements for record keeping are governed by the FSA, whilst the Law Society provides guidance for Law Firms. Extracts from these organisations web sites that are relevant for electronic document retention are included later in this article.

Whichever body provides guidance on electronic document storage there is an important British Standard (BIP 0008) which lays down the process steps and guidelines required when converting paper records to legally admissible electronic records. The selection of a supplier whose process for conversion complies with this standard is essential.

Evidential Weight and Legal Admissibility

BSI BIP 0008 is a code of practice that provides guidance to ensure, as far as possible, that electronic documents and scanned images will be accepted as evidence by the courts. The key to this guidance is that the process under which documents are managed is as important as the technology used – where a document is reproduced it should accurately reproduce the contents of the "original".

Originally introduced in 1996 the guideline has been updated several times in order to keep the standard relevant to take into account technology developments:

• BIP 0008-1:1999 Best practice guidelines for the management of electronic documents and systems to maximise their value in a Court of Law
• BIP 0008-1:2004 covers electronic creation and storage of documents
• BIP 0008-2:2005 covers documents communicated electronically (including e-mail)
• BIP 0008-3:2005 covers the linking of identity to an electronic document
• BIP 0008-1:2008 covers Local Authorities implementing Freedom of Information Act
• BIP 0008-2:2008 covers documents communicated electronically (including SMS messaging)
• BIP 0008-3:2008 covers the authenticity of electronic identities  

The key principles behind BIP 0008 are:

1. Authenticity – Processes to be followed at system planning, implementation and the procedures by which the systems should be operated.
2. Storage and access procedures – Procedures including scanning, indexing, retrieval, system administration, archiving, off-site storage and training, to be followed
3. Demonstrability of adherence – A structured audit process resulting in a Certificate of Conformity that displays demonstrability of adherence.

thecabinetoffice follows BIP 0008 principles in that the images produced are dated stamped and cannot be altered, and the certification process we follow ensures that our clients have an audit trail of files scanned and destroyed. It is this audit trail that is important in determining that the original paper copies are now destroyed and that as a consequence the scanned images are deemed to be the originals.

Each batch of documents we collect is given a unique reference number. When delivering the scanned images back on disc a list of all the files on that disc (HIT LIST) and a Destruction Request Form are provided using this reference number. Only on receipt of a signed copy of the Destruction Request Form i.e. only on instruction from our customers, do we destroy the original documents and in doing so we issue a Destruction Confirmation Certificate stating that the originals are destroyed. The copies of the HIT LIST, Destruction Request and Destruction Confirmation Certificates are the evidence required for the scanned images to be admissible.

Law Society Guidance

The Law Society carries guidance with regard to legal admissibility of electronically stored documents in its publication: Guidance – ownership, storage and destruction of documents, which is available from the Law Society’s website, extracts of this are as follows:

6. Can I store documents photographically or electronically, and destroy the originals?

Original documents, such as deeds, guarantees or certificates, which are not your own property, should not be destroyed without the express written permission of the owner. Where the work has been completed and the bill paid, other documents, including your file, may be stored, for example, on a CD ROM, computer system or microfilm and then destroyed after a reasonable time. In cases of doubt the owner’s written permission should always be sought. If it is not possible to obtain such permission you will have to form a view and evaluate the risk. When seeking owners’ permission to microfilm or store data electronically and destroy documents, you may wish to reserve the right to make a reasonable charge for preparing copies if they are later requested. See question 4(a) above for the requirements of Customs and Excise.

7. What is the evidential value of a photographically or electronically stored document where the original has been destroyed?

There is a dearth of judicial authority on this topic and, until the law and practice on the subject of microfilmed or electronically stored documents are clarified, it is only possible to provide general guidelines.

The Society has been advised that:

(a) A microfilm of any document in a solicitor’s file will be admissible evidence to the same extent, no more and no less, as the document itself, provided that there is admissible evidence of the destruction of the document and identification of the copy.

(b) Written evidence of the destruction of the original and of identification of the copy will enable the microfilm to be adduced in subsequent civil proceedings (under the Civil Evidence Act 1968) and in criminal proceedings (under the Police and Criminal Evidence Act 1984).

8. What procedures would the Society recommend where an original document is stored electronically or photographically and then the original is destroyed?

(a) Written evidence of the destruction of the original and of identification of the copy must always be preserved in case oral evidence is no longer available when needed (see question 7(b) above).

(b) There should be a proper system for:

(i) identifying each file or document destroyed;
(ii) recording that the complete file or document, as the case may be, has been photographed;
(iii) recording identification by the camera operator of the negatives as copies of the documents photographed; and
(iv) preserving and indexing the negatives.

(c) If a microfilm, electronically or photographically stored data is required to be produced in evidence, a partner or senior member of staff should be able to certify that:

(i) the document has been destroyed;
(ii) the microfilm, electronically or photographically stored data is a true record of that document; and
(iii) the enlargement is an enlargement of the microfilm, electronically or photographically stored data.

(d) Microfilm copies of some documents (e.g. coloured plans) can be unsatisfactory, in which case the originals should be preserved.

9. Will I be covered by the Solicitors’ Indemnity Fund if I lose a client’s file or destroy it without the client’s consent?

If you incur liability either to a client or to a third party by the loss or destruction of documents, cover will normally be provided by the Solicitors’ Indemnity Fund.

NOTE:

With regard to point 8 (d) above - the scanned images are colour where necessary so that the evidential weight of colour plans and photographs are maintained in electronic format.

FSA Guidance

The ‘FSA Handbook: Conduct of Business: Section 3.7: Records’ deals not only with guidance for the term of document retention but also with the form of the record. The Handbook states:

3.7.4 A record may be in any form, provided that it is readily accessible for inspection by the FSA.

3.7.5 A firm may arrange for records to be kept in such forms as it chooses, such as hard copy, disk or tape…….a record would be readily accessible if it were available for inspection within 48 hours of the request being made

HMRC Guidance

HMRC states that records kept in an electronic format are generally required to be treated the same as hard copies

As long as your VAT records meet HMRC's requirements, you can keep them in whatever format - paper and/or electronic - that you prefer. If you do keep all or part of your records on a computer or with a computer bureau, you must make sure that your records are easily accessible to you and to a VAT officer when they visit.

If you upgrade to a new computer system which is not compatible with your old system, you must make sure that the records held on your old system remain accessible for up to six years. If this is not possible, then you must make paper copies.

You can also keep your records on microfilm, or microfiche, provided that copies can be easily produced and that there are adequate facilities for allowing VAT officers to view them when required. You do not have to apply in advance to keep your records in this way, but HMRC may require you to keep them in a different format if records are not easily accessible.

Acknowledgements

Information used in this article was gained from the following websites:

http://www.bsi-global.com/
http://www.lawsociety.org.uk/
http://www.fsa.gov.uk/
http://www.hmrc.gov.uk/