LAW ON ARCHIVAL MATERIAL – SERBIA REGULATES THE AREA OF ARCHIVING AFTER MORE THAN 2 DECADES

19
Apr 2021

Contact: Marija Medić

zakon o arhivskoj građi

The continuous technological development has made it customary for business entities to create most of the documents electronically or digitalize the paper ones. If you kept documents considered archival only in electronic form, you should be aware that you acted contrary to previously applicable legal regulations.

Specifically, the previous Law on Archival Material from 1998, which regulated this area, had not regulated the issue of keeping archival material in electronic form, and the above regulation was not in accordance with the constant development of technology and digitalization and can be considered obsolete for the 21st century.

As of February 2, 2021, the new Law on Archival Material and Archival Activities (hereinafter: Law) was implemented according to the legislation of the Republic of Serbia. The Law introduces new obligations for all entities that create archival material and documentary material (state bodies and organizations, territorial autonomy bodies and local self-government units, institutions, public enterprises, businesses, entrepreneurs, persons performing registered business activities).

Since the Law imposes different rules for the public and private sectors, we will focus solely on the obligations of entities within the private sector under the scope of this blog post.

Main Notions of the Law on Archival Material – Understand the Obligations Better

Business entities need to understand the basic notions introduced by the Law to be sure how to comply with its provisions.

First and foremost, it is important to understand to whom the new Law applies. Specifically, the obligation to comply with the new regulation applies to all persons who are considered creators of archival material and documentary material, which are all legal entities, both from the private and public sectors, as well as natural persons performing business activities.

It is also important to note that the size of the company and the number of employees do not affect the existence of the obligation to comply with the new regulations. So, if you have even one person who is in a working relationship with your company, you are obliged to comply with the Law.

Further, it is important 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. The 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, 30 years after the creation of documents representing archival material.

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 notion of archival material in electronic form is introduced, which is an archival material originally created in electronic form. For the first time, the Law introduces the possibility to create and preserve archival material in electronic form, which will have to be kept in accordance with the provisions of the Law and regulations governing reliable electronic storage of documents.

What Obligations do Business Entities have in Terms of Archival Material and Documentary Material?

zakon o arhiviranju

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.

The new Law retained some of the previously binding rules, such as the obligation to keep an archive book, handing over archival material to the competent archive, but new significant obligations were introduced in addition to previously existing ones.

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 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;
  • 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.

If you choose to convert to electronic form, it is necessary to apply both the Law on Electronic Document and Bylaws as a qualified system that guarantees protection, as digitalization must be done in a way that maintains the authenticity, reliability,   integrity, and usability of electronic documents.

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.

The competent authorities have not yet adopted a new form of archive book (although that was announced by the new regulation), so business entities will still be obliged to use the old form until a new one is enacted.

What Legal Acts Do Business Entities Have to Possess?

The new Law defines the same obligation for business entities in terms of general acts, which have been in effect before, which implies the adoption of:

  • general act on how to log, classify, archive, and store archival material and documentary materials -Rulebook on office procedures;
  • category lists of archival material and documentary material with retention periods – list of categories;
  • general act on how to log, protect, and use electronic documents – Rulebook on 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.

Main Principle – Ban on Destroying and Storing of Archival Material

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.

It is especially important to consider the form of creation and preservation of documentary material and archival material.

If you have documentary material, which is classified as archival material, which means that it must be permanently stored, and it was originally created in 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, 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.

How to Properly Keep Electronic Material?

First, it is necessary to adopt a general act that will regulate 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.

Can Certain Documentary Material Be Destroyed (Extracted) In Accordance with the Law?

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

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 permanently kept cannot be destroyed after being digitalized, but the documents are kept in their original form.

How Does the Law Affect Personal Data?

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 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.

Have a Contingency Plan In Place

To prepare the protection of archives in time, 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 he planned as actions to protect the material from destruction, and, also, if an emergency occurs, the creator is obliged to compile a record, in which they will state the day, hour, what circumstances occurred, and without delay, inform the competent archive as soon as possible.

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. In this case, too, the competent Ministry should issue bylaws that will regulate in detail the supervision over compliance with the Law.

What if You Have Not Complied with the Previous Regulations?

If you have not complied with the previous regulations, now is the time to correct that.

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.

In addition, all business entities have a deadline until April 30, 2021, to submit a transcript of the archive book for the previous year. Entities that did not fulfill that obligation are required to submit a transcript of the archive book in 2021, starting from their establishment. For now, only the archives of the city of Belgrade have extended the deadline until the end of 2021 for submitting a transcript of the archive book, due to the epidemiological situation, while other archives have not yet issued official notifications postponing this obligation.

Numerous Obligations, Insufficiently Clear Compliance Rules

Analyzing all the provisions, the goal is to regulate the unique way and uniform rules of protection of archival material, then to 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 lack of bylaws, which would be a guide for businesses to act. Currently, it is expected that bylaws will determine what the archival book containing archival material should look like, what will be the form, as well as the need to introduce a body within our state that could keep electronic documents, in accordance with all these conditions.

Until then, it is impossible to apply what in theory seems like a pragmatic idea, which would save a lot of space, time, and financial resources.

However, all this does not affect the obligation of business entities to comply with the regulations that have already entered into force and started to be applied.

Finally – in case of violation of any of the above obligations, fines are prescribed for legal entities, but also the responsible person in the legal entity.

The new Law introduces fines for legal entities, which can be imposed in the range of 50,000 to as much as 2 million dinars. The responsible person in the legal entity could be fined up to 150,000 dinars for the violation.

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