LAW ON ARCHIVAL MATERIAL IN PRACTICE: 10 THINGS YOU NEED TO KNOW

19
May 2022

Contact: Marija Medić

zakon o arhivskoj građi

The applicable Law on Archival Material and Archival Activities (hereinafter: Law) came into force on  February 2, 2021. The Law has introduced new, more demanding obligations in comparison with the previous relevant law from 1998.  All the entities that create archival material and documentary material are subjected to these obligations; that means in particular:

  • companies,
  • entrepreneurs and persons performing a registered business activity,
  • public enterprises,
  • institutions,
  • territorial autonomy bodies and local self-government units,
  • state bodies and organizations.,

However, despite the Law having entered into force more than a year ago, in practice, there are still many doubts regarding the specific obligations that the Law has introduced for the creators of archival material and documentary material. The fact that the deadline for the adoption of an important bylaw for the implementation of this Law (Rulebook on the Form of the Archive Book) was delayed, has certainly contributed to that issue, as well as the insufficient public awareness of the introduced legal concepts.

Since the Law imposes different rules for the public and private sectors, in the following paragraphs, we will focus exclusively on the obligations of entities within the private sector.

1. Basic Concepts of the Law on Archival Material

In order to be able to act in accordance with the provisions of the Law, a business entity primarily needs to understand the basic concepts introduced by the Law. The paramount question certainly is – to whom the Law on Archival Material applies?

Namely, the obligation to comply with the regulation applies to all persons who are considered creators of archival material and documentary material, which includes all legal entities, both from the private and public sectors, as well as natural persons performing business activities.

It is important to note that the size of the company and the number of employees do not affect the requirement to comply with these regulations. Thus, even if you have only one employee, you will be subjected to the Law.

Further, every creator should be able to distinguish documentary material from archival material. Documentary material represents all documents, produced by subjects, both in the private and public sectors. The retention periods for keeping such material (which is not necessary to be permanently kept) are determined by the business entity from whose work they arise, applying the retention periods prescribed by special laws.

Archival material represents a specific kind of documentary material. Its particularity reflects in the fact that archival material is made up of documents that have a certain cultural, historical, and general social significance, which must be permanently preserved and submitted to the competent archive for retention, after the expiration of 30 years from the day of its creation.

Therefore, the key is that the archival material is kept permanently, while the documentary material can be released and destroyed after the defined retention period has passed.

As a special form of archival material, the archival material in electronic form is introduced – an archival material originally created in electronic form. Even though the Law has provided the possibility to create and preserve archival material in electronic form, it should be noted that the archival material in electronic form has to be kept in accordance with the regulations governing reliable electronic storage of documents as well.

Thus, if you choose to convert certain documentation to an electronic form, it is necessary to comply with both the Law on Electronic Document and relevant bylaws,  i.e., apply a qualified system that guarantees the protection, as digitalization must be done in a way that maintains the authenticity, reliability,   integrity, and usability of electronic documents.

2. What are the Obligations of Business Entities with Respect to the Archival Material and Documentary Material?

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The creator is obligated to record the entire archival material and documentary material that it has created during its business performance, in a form of an archive book.

All obligations for business entities serve one goal – to conscientiously preserve archival material and documentary material in an orderly and secure manner, in the form in which they were created.

Specifically, the Law prescribes the following obligations:

  • providing appropriate space and equipment for accommodation and protection of archival material and documentary materials;
  • determination of a responsible professional for the protection of material and treatment of the material;
  • records, classification, dating, and archiving of archival material and documentary material;
  • list of archival material categories and documentary materials with retention periods;
  • handing over archival material competently under the terms and retention periods set out by the Law;
  • ensuring permanent storage in electronic form;
  • archival bookkeeping in the prescribed form (in a paper or an electronic form);
  • submission of archive books to the competent archive for the previous year, no later than April 30 of the current year;
  • selection and separation for the destruction of worthless documentary material whose storage period has expired, one year from the date of expiration of the established period.

A year upon the Law’s entry into force, more precisely, on March 16, 2022, the Rulebook on the Form of the Archive Book was adopted, providing the Form of the Archive Book in its Appendix (Form AK).

In terms of keeping the electronic archive book and category list, the archives currently accept the submission of a list of categories and transcripts of the archive book only in paper form, but the plan is for the archives to accept the electronic submission of the specified documentation in the future.

3. Mandatory Company Legislation for Business Entities

Regarding the adoption of general acts, the business entities have an obligation to adopt the following documents:

  • general act on the manner of recording, classifying, archiving, and storing the archival material and the documentary material -Rulebook on office procedures;
  • list of categories of archival material and documentary material with the retention periods – List of categories;
  • general act on the manner of recording, protecting, and using the electronic documents – Rulebook on the electronic documents.

The List of categories is a special act that determines the types of archival material and documentary material with retention periods, which is sent to the competent local archive for approval. The list of categories contains categories of documentation from the main activity of the company, as well as accounting and legal documentation.

It is important to note that the names of the categories from the List and the retention periods must be identical to the names and retention periods entered in the archive book.

After the adoption of the List of Categories, it is necessary to select archival material, i.e., to select material whose retention periods have expired and which has no further operational significance, for extraction.

When adopting the above-mentioned general acts, it is crucial to properly regulate the procedures, deadlines, types of documents, classifications, authorizations, and responsibilities, both in terms of archives and in terms of documentary material.

Be careful not to fall into the trap of copying or taking over other people’s general acts and lists of categories of archival material and documentary material, bearing in mind that each business entity has specifics in business and the material it creates. If you just copy someone else’s documents, you risk a discrepancy between the legal and factual situation, which can also lead to misdemeanor liability and the imposition of fines, both for the business entity and the responsible person.

4. Main Principle of the Law – Storing of Archival Material and Prohibition of its Destruction

The legislator, through all provisions of the Law, especially through criminal provisions, expresses the imperative of protecting the archival material. Archival material must not be destroyed or damaged, no matter whether it is microfilmed or digitalized. The form of creation and preservation of documentary material and archival material is also of great importance.

If you possess a documentary material that is classified as archival material, which means that it must be permanently stored, and which was originally created in a paper form, you must not destroy it, even if it has been digitized (it is recommended to digitize it for operational purposes, not as the only and ultimate form of storage).

The electronic form must be qualified, in accordance with the Law on Electronic Document, Electronic Identification, and Trust Services in Electronic Business (hereinafter: the Law on Electronic Document). This means that it is digitalized, and converted into electronic form, which was originally created in paper form, in such a way that it now becomes suitable for electronic processing and electronic exchange.

Such a document is, in accordance with the Law on Electronic Document, a copy of the original document in paper form.

5. What Does It Mean – to Properly Keep Electronic Material?

First, it is necessary to adopt a general act that regulates the storage of electronic materials. The provisions of the general act need to be harmonized with the Regulation on the conditions for the preparation of documents for reliable electronic storage and document formats that are suitable for long-term storage. Accordingly, it is necessary to consider the following legal and technical conditions:

  • storage is done in a format suitable for long-term storage (for example, older versions of Microsoft Word are not able to open because they are not supported by current software);
  • all elements of the original document must be in digital form;
  • the digitalized document must be as usable as the one originally created in paper form (pages, stamps, and signatures must be seen identically as in the original paper form);
  • The information system used for these actions must contain a log of all actions taken, which is kept throughout the document retention period.

6. What Documentary Material Can Be Destroyed i.e., Extracted

The process of separating and destroying the documentary material whose retention period has expired is called extraction.

Business entities are obliged to extract documentary material that has expired once a year.

After the documentary material expires in accordance with the List of categories, it can be extracted (destroyed). However, the aforementioned material must be entered in the archive book, and a transcript of the archive book is duly submitted to the competent public archive. In addition, it must be the documentary material that is on the List of categories of archival material and documentary material with retention periods to which the archive has agreed.

On the other hand, the archival material that is required to be permanently kept cannot be destroyed after being digitalized, but the documents shall be kept in their original form.

7. Impact of the Law the Personal Data Processed by the Entity

When it comes to documentary material, it inevitably contains certain personal data. Then it is necessary to pay attention to the obligations prescribed by the Law on Personal Data Protection.

This is a great opportunity to remind business entities that it is necessary to adopt the Rulebook on keeping and deleting personal data because the Law on Archival Materials also instructs that when destroying material containing personal data, the rights of the persons whose data are in question, must be protected and respected in accordance with the Law on Personal Data Protection.

The basic principle in data processing is that data is stored and used as long as there is a basis and purpose for processing, and their unlimited processing is enabled in no way. The exception, from the general processing regime, refers to the processing of data to archive personal data, in the public interest.

The Law on Personal Data Protection does not prescribe retention periods for storing personal data, and it is left to the personal data controller to determine “appropriate” retention periods. However, data cannot be stored indefinitely or permanently, given the prescribed principle of limiting the retention period.

Therefore, it is important to adopt a special Rulebook on the retention and deletion of personal data, guided by the principles of the Law on Personal Data Protection, as well as the provisions of the Law on Archival Material. Finally, it is necessary to harmonize the retention periods defined by the Rulebook on office operations and the List of categories with the retention periods prescribed by the Rulebook on storing and deleting personal data.

8. Mandatory Preparation for the Extraordinary Circumstances

In order to timely prepare the protection of archives, in case of force majeure or risk of disasters and emergencies, the creator is obliged to adopt a Plan of measures for the protection of archive material from disasters.

The creator must adhere to all activities that they planned as actions to protect the material from destruction, and, also, if an emergency occurs, to compile a record which will contain the day, hour, circumstances that occurred, and without delay, inform the competent archive about it.

In particular, measures for the protection of archival material include:

  • preventive protection (from natural deterioration and prevention of damage to archives due to natural forces and disasters, emergencies, failures in installations, inadequate security against theft, etc.);
  • microfilming and digitization (reformatting archive material into microfilm or digital record);
  • conservation (intervention techniques that achieve chemical and physical stabilization of archives); i
  • restoration (procedures by which archival material is returned to a known or assumed state).

The competent archive supervises the execution of the obligation to adopt this Plan, as well as the observance of all obligations in the field of recording, storage, classification, selection, and professional maintenance of archival material is conducted by the competent archive, and the protection measures for the archival material are regulated in detail under the Rulebook on detailed measures for the protection of archival material from March 25, 2021.

9. What if You Have Not Complied with the Regulations?

If you have not complied with the regulations yet, it is important to correct that as soon as possible.

Primarily, it is necessary to list all the documentation, starting from the company formation, retroactively and form an archive book. Further, it is necessary to start drafting the List of Categories, to categorize the entire documentation.

Besides, it is necessary to adopt appropriate general acts, i.e., Rulebook on office operations and Rulebook on electronic documents.

Although some archives, such as the Historical Archive of Belgrade, currently are unable to receive new documentation due to the volume of the received documentation, it is by no means advisable to ignore the obligations introduced by the Law. Namely, in order to solve this problem, the process of establishing an e-service has begun, which is expected to enable the submission of documentation in electronic form in the near future.

10. Liability for Non-Compliance with the Obligations

It should be taken into consideration that, in case of violation of any of the above obligations, fines are prescribed for both the legal entities and the responsible person in the legal entity. Fines that can be imposed on a legal entity range from 50,000 to as much as 2 million RSD, while the responsible person in the legal entity could be fined up to RSD 150,000.

Analyzing all the provisions and their application so far, the goal is to regulate the unique way and uniform rules of protection of archival material, then accelerate digitalization as a form of storage, and to make copies in electronic form of documents in paper form, for preservation. However, the key problem is the insufficient familiarity of business entities with the basic concepts of the Law, their rights and obligations in terms of archival procedures, as well as the inability to use contemporary technological means to communicate with the competent archives.  Also, the issue of establishing a state body that would manage and store the electronic documents in accordance with all the above conditions remains unsolved.

Due to the above, the application of solutions that in theory seem pragmatic, and which would save a lot of space, time, and financial resources turns out to be difficult and hindering the business activities. Nonetheless, all this does not affect the obligation of business entities to comply with the regulations that came into force a long time ago and began to be applied.

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