FAQ: What is the guidance on ownership, storage and destruction of documents?
The guidance on electronically storing documents and destroying of paper documents depends on what type of organisation you are. Everything from Law Firms to Charities have different guidelines set out to ensure your business stays compliant with data retention rules and regulations. Extracts from each regulatory body have been drawn up in the following article. Read on to find out more.
We have selected the most relevant sections from the guidance for your perusal. Click the links below each section to download the full publication.
Law Society Guidance:
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. [...]
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 beendestroyed;
(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.
FSA Handbook (superseded by FCA Handbook) Guidance:
SYSC 9.1.4 G
Subject to any other record-keeping rule in the Handbook, the records required under the Handbook should be capable of beingreproduced in the English language on paper. Where a firm is required to retain a record of a communication that was not made in the English language, it may retain it in that language. However, it should be able to provide a translation on request.
SYSC 9.1.5 G
In relation to the retention of records for non-MiFID business, a firm should have appropriate systems and controls in place with respect to the adequacy of, access to, and the security of its records so that the firm may fulfil its regulatory and statutory obligations. With respect to retention periods, the general principle is that records should be retained for as long as is relevant for the purposes for which they are made.
[...] A number of recommendations have been adopted:
a. A record of all such documents should be recorded on a database. This should be updated and maintained in line with current security and operational policy.
b. A manual record of any documents returned or destroyed should be recorded, witnessed and retained securely in the destruction & returns log sheet.
c. All documents should be retained for a period of 1 year and destroyed thereafteror returned to the relevant issuing authority (if appropriate). This includes withdrawn applications where documentation cannot be returned due to lack of contact or no response from the applicant.
d. An electronic documents database has been set up by the Security Team for all regional offices, to record all documents that have been retained in IPS (with the exception of foreign passports) when they cannot be re-united with the rightful owners.
e. Instructions will be given to ensure that all regional offices deal with the destruction of these documents in a consistent manner.
It should be noted that every effort should be made to re-unite these documents with the rightful holders before any documents are destroyed or returned to the relevant issuing authority. Each regional office should ensure that these documents are stored in secure locations and access is restricted to those authorised to do so. Any documents that cannot be re-united with the rightful owner should be added to the documents database. Documents should be held for a maximum of 1 year, [...] then either destroyed or returned to the issuing authority concerned.
Each office should carry out a minimum of an annual check of stored documents and any that have been retained for 1 year or more should be either destroyed or returned to the issuing authority in line with the instructions below. [...].
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