CM(2003)98 Addendum 2 13 August 2003
851 Meeting, 9 September 2003
10 Legal questions
10.1 European Committee on legal co-operation (CDCJ)
c. Draft Recommendation Rec(2003)… of the Committee of Ministers to member states on archiving electronic documents in the legal sector and its Explanatory Memorandum
Draft Recommendation Rec(2003)…
of the Committee of Ministers to member states
on archiving of electronic documents in the legal sector
(adopted by the Committee of Ministers on …
at the … meeting of the Ministers' Deputies)
The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,
Considering that the aim of the Council of Europe is to achieve greater unity among its members;
Considering that archiving is an essential part of case processing in the legal sector;
Bearing in mind that various legal documents are required by law to be preserved for very long periods of time or even permanently;
Aware that the growing number of computer users and electronic communications, the digitising of sound and video recording, and the introduction of more powerful information technology systems is bound to increase the use of electronic documents in the legal sector;
Bearing in mind that an increasing number of legal documents will be produced in electronic form in accordance with the legislation on electronic signatures;
Considering that adequate procedures for the archiving of electronic documents are essential to promote the legal recognition and wide use of electronic documents, electronic signatures and electronic data processing in the legal sector;
Recognising that electronic documents offer numerous advantages and extensive functionality such as vast access, display and communication possibilities;
Realising, at the same time, that the preservation of electronic documents faces the problem of the limited longevity of the conservation media, the diversity of document formats and standards, and the rapid obsolescence of the hardware and software required for their readability;
Aware also of the organisational problems, high costs and security-related risks in the preservation of electronic documents;
Resolved to find appropriate solutions for the archiving of electronic documents in the legal sector;
Recognising at the same time that the constant evolution of technology does not permit the setting of definitive technical standards for the archiving of electronic documents;
Considering, nevertheless, that when drawing the attention of member states, legal sector organisations and archiving services to the risks and problems related to the archiving of electronic documents, it is essential to promote continuous research in this field;
Having regard to Recommendation No. R (95) 11 concerning the selection, processing, presentation and archiving of court decisions in legal information retrieval systems, Recommendation No. R (2000) 13 on a European policy on access to archives, Recommendation Rec(2001)2 concerning the design and re-design of court systems and legal information systems in a cost-effective manner, Recommendation Rec(2002)2 on access to official documents and Recommendation Rec(2003)… on the interoperability of information systems in the justice sector;
Recommends that governments of member states:
1. implement the principles and guidelines set out in this recommendation in their domestic law and practice;
2. bring these principles and guidelines to the attention of persons and institutions responsible for the archiving of electronic documents in the legal sector.
For the purposes of this recommendation:
– “archiving” shall mean the preservation of documents for periods prescribed by the applicable law and regulations of member states, consisting of the following two stages:
i. “initial preservation”: preservation related to the primary purposes for which the documents have been produced in view of their evidential value;
ii. “subsequent archiving”: preservation related to the heritage value of the documents beyond their primary purposes;
– “archiving services” shall mean bodies responsible for archiving, including:
i. “archivists”: persons or departments within the organisations that have produced or received the documents in question as well as specialised archiving services responsible for initial preservation of documents;
ii. “Archives”: public national institutions or public institutions of local communities responsible for subsequent archiving, in accordance with the applicable law and regulations of member states;
– “electronic documents” shall refer to documents, including texts as well as images, audio and video in digital form, which have the capacity to create rights or have evidential value and may be submitted to a public repository;
– “legal sector” shall comprise all public and private stakeholders that act as producers or recipients of electronic documents within the meaning of the previous definition.
2. General provisions
2.1. Member states should ensure that the legal norms regulating archiving are applied also to electronic documents.
2.2. Electronic documents should be archived in a way that preserves their integrity, authenticity, reliability, and, where appropriate, their confidentiality.
2.3. The readability and accessibility of archived electronic documents should be guaranteed over time, taking into account the evolution of information technology.
2.4. As in the case of the archiving of paper-based documents, the period of preservation of electronic documents and the time at which they may be made available to the public should be determined in collaboration with the archivists.
2.5. Archived electronic documents should be associated with standardised metadata describing the context of their creation as well as the existing links with other electronic, paper-based or analogue documents.
2.6. Encrypted electronic documents should be archived in a decrypted form.
2.7. Digitisation of paper-based or analogue documents can be justified for their more efficient use and processing but should not aim necessarily at replacing archiving of documents in their original form.
3. Organisational measures
3.1. Initial preservation of electronic documents should be carried out either by the responsible staff within the organisations that have produced or received the electronic documents in question, or by specialised archiving services, in co-ordination with Archives.
3.2. Member states should encourage the reduction, after the closure of the files concerned, of the legal delays for the transfer of electronic documents to Archives for subsequent archiving.
3.3. Electronic documents submitted to archiving services should be accompanied by their metadata.
3.4. Member states should endeavour to provide the Archives and organisations in the legal sector entrusted by law with the duty of archiving, with the necessary resources for the archiving of electronic documents.
3.5. Archives should implement electronic document archiving programmes in order to accumulate the necessary know-how and thus be in a position to provide the necessary recommendations on the archiving of electronic documents to archivists and other organisations concerned.
4. Security measures
4.1. All operations concerning the archiving of electronic documents should be subject to procedures ensuring their traceability.
4.2. Archiving services should verify, possibly through the use of electronic signatures or other electronic procedures, that electronic documents are submitted to them by competent persons or organisations and that they have not been altered during their transmission.
4.3. The entry, modification or deletion of electronic documents in electronic document archiving systems should be executed by specialists authorised and trained to carry out such operations.
4.4. Member states should facilitate the use of modern security techniques to preserve the integrity of archived electronic documents, such as an electronic signature for storage media or the use of non-rewriteable storage media.
4.5. Copies of the archived electronic document should be preserved by the archiving services, if possible on several different storage media.
4.6. Procedures should be put in place to ensure the physical protection of premises where the electronic document archiving systems are situated, including adequate storage conditions and access control. The electronic document archiving systems should be subject to periodic assessment.
5. Conservation measures
5.1. Electronic documents should be archived by periodically applying migration techniques – periodic transfer of data from one storage medium to another or from one format to another. Migration should also apply to metadata concerning the archived electronic documents.
5.2. Migration to new storage media should take place regularly, taking account of degradation and wear in the medium in question. Storage media should be renewed when they become obsolete because of the technological development of media and hardware.
5.3. Migration to new formats should be carried out, when appropriate, in view of the technological evolution.
5.4. Member states should also encourage research and experimentation in emulation as an alternative method for the preservation of electronic documents.
6. Document formats
6.1. Member states should encourage uniformity in the document formats used in the legal sector.
6.2. Member states should ensure that these formats are open, international and standard, and that they permit subsequent migration of data and allow processing in different languages.
6.3. Archiving services should be consulted on and involved in the selection of formats and the definition of metadata to ensure that the subsequent requirements for the archiving of electronic documents are properly taken into account.
7. Electronic signatures
7.1. As it is the responsibility of the creating authority to verify the authenticity of the electronic document by verifying its electronic signature at the moment when this electronic document is under its control and before its transmission to archiving, the archiving services should not be obliged to verify electronic signatures used initially by those who have contributed to the preparation of the electronic document that has been certified with an electronic signature.
7.2. An archived electronic document should be considered reliable and valid, in the absence of proof to the contrary, regardless of the possibility of continuous verification of its initial electronic signature, provided that it has been transmitted to and preserved by archiving services in accordance with the security requirements as specified in Principle 4.
1. The rapid development of information technology leads to increasing use of electronic documents in the legal sector. The legal basis of electronic documents is being strengthened thanks to the legislation on electronic signatures and with the introduction of electronic workflows in the legal sector organisations. The growing transparency requirements in the functioning of the public sector are also likely to raise the number of documents to be conserved in electronic form for their presentation to the public.
2. Although there are many limitations on the use of electronic documents in the legal sector, such as requirements of procedural laws, human factors and lack of equipment that will result in retaining, for an indefinite period of time, many paper-based documents and procedures, it is clear that in the future the legal sector will be processing a growing number of electronic documents, including at the archiving stage.
3. Archiving is one of the important stages of case processing especially in the legal sector as certain legal documents are required by law to be stored for very long periods of time or even permanently. These archiving requirements will also have to be fulfilled with respect to electronic documents.
4. Electronic documents have numerous advantages and extensive functionality that considerably increase the efficiency of the legal sector but, at the same time, the archiving of electronic documents faces the problem of rapid obsolescence of hardware and software required for their preservation and readability. The technical intermediaries – software and hardware – are of crucial importance for the processing of electronic documents. This is not the case for the traditional archiving of paper-based documents.
5. The rapidity of technological evolution may render electronic documents inaccessible for future generations of software and hardware. The longevity of the physical media for storage of electronic documents is also still limited. These media can lose their information retrieval capacities because of mechanical or magnetic deterioration leading to the loss of data. Archiving of electronic documents is also confronted with a certain number of organisational problems, in particular the need for an awareness of archiving in the design and processing of electronic documents.
6. It is therefore essential for the legal security of European states to find appropriate solutions for the long term archiving of electronic documents. With this objective in mind, in order to examine archiving needs and problems resulting from the introduction of electronic documents in the legal sector, the Committee of Ministers of the Council of Europe instructed the Committee of Experts on Information Technology and Law (CJ-IT) to conduct, in 2001 and 2002, an activity on the archiving of electronic documents in the legal sector. In the implementation of this activity, the CJ-IT was assisted by the Working Party on archiving of electronic documents and dematerialised files in the legal sector (CJ-IT GT XIV). The tasks of the CJ-IT GT XIV were to identify technical and legal solutions for electronic archiving of official publications, public registers and legal files.
7. The CJ-IT GT XIV held two meetings, on 16 – 17 May 2001 and on 28 – 29 May 2002. The preliminary draft of the present Recommendation was examined during the 25th CJ-IT plenary meeting on 23 – 25 October 2001. The draft Recommendation and its draft Explanatory Memorandum were finalised by the Committee of Experts on Efficiency of Justice (CJ-EJ) during its 5th plenary meeting on 13 – 15 November 2002 and approved by the European Committee on Legal Co-operation (CDCJ) during its 78th meeting on 20 – 23 May 2003.
8. With regard to the archiving of electronic documents, reference should be made to the previous relevant work of the Council of Europe in this field, in particular to Recommendation No. R (95) 11 concerning the selection, processing, presentation and archiving of court decisions in legal information retrieval systems, which contains certain provisions and guidelines concerning archiving of court decisions.
9. Note should also be taken of Recommendation No. R(2001)2 of 28 February 2001 concerning the design and re-design of court systems and legal information systems in a cost effective manner, which deals, in particular, with the establishment and upgrading of courts' case management systems, one of whose functions is archiving of electronic case file documents.
10. The present Recommendation does not deal with rights of access to archived electronic documents which is a subject covered by Recommendation No. R(2000)13 on a European policy on access to archives and Recommendation No. R(2002)2 on access to official documents.
11. Finally, Recommendation No. R(2003)___ on the interoperability of information systems in the justice sector offers an analysis of emerging document and communication standards in the field of justice, notably XML (Extensible Mark-up Language), which will have an important impact also in the field of the archiving of electronic documents.
Structure of the Recommendation
12. The Recommendation contains a Preamble with several introductory clauses explaining the background of the Recommendation and making reference to the previous relevant work in this field. The substantive provisions of the Recommendation are set out in seven principles:
- Principle 1 – Definitions;
- Principle 2 – General provisions;
- Principle 3 – Organisational measures;
- Principle 4 – Security measures;
- Principle 5 – Conservation measures;
- Principle 6 – Document formats;
- Principle 7 – Electronic signatures.
13. The Preamble underlines the importance of the archiving stage in case processing in the legal sector. Electronic documents have numerous advantages and extensive functionality that can considerably increase the efficiency of case processing in the legal sector. Nevertheless, the various archiving problems of electronic documents may become a serious obstacle for their use in the legal sector, thus denying the legal sector the important benefits of the information age. The Preamble accordingly recognises the crucial importance of establishing appropriate procedures for the archiving of electronic documents in the legal sector.
Principle 1 – Definitions
14. The Recommendation distinguishes between two stages of archiving which are “initial preservation” related to the evidential value of documents and “subsequent archiving” related to the heritage value of documents. Although many provisions of the Recommendation apply at the same time to both of these stages of archiving as in the case of, for example, electronic document formats, certain of its provisions nevertheless deal with various issues particular to each stage, especially in the field of the organisation of archiving.
15. At the initial preservation stage documents are normally preserved by organisations that have produced or received them. The duration of initial preservation is normally determined by law or regulations and varies according to the type of document. During the initial preservation period, these organisations also exercise the exclusive right to produce certified copies and extracts of documents. During the initial preservation period there are rapid access facilities both for authorised users to restricted documents such as court files and for all citizens to public documents such as official publications.
16. During the initial preservation period, documents are preserved by “archivists” who can be officers or departments within organisations themselves that have produced or received the documents in question. However, the initial preservation can also be entrusted to specialised public or private archiving services that ensure the initial preservation for the benefit of several organisations or in a specific field.
17. After the lapse of the period prescribed by law or regulation, documents to be archived are transferred to “Archives”, which are public national institutions or institutions of local communities responsible for subsequent archiving. The subsequent archiving of certain documents may also be carried out by professional organisations in the legal sector to whom the exercise of the public authority in the area has been delegated, such as notary chambers. The Archives are responsible for issuing certified copies and extracts as well as for ensuring access and public availability of archived documents in accordance with the applicable law.
18. The generic term adopted by the Recommendation for designating these different bodies in charge of archiving is “archiving services”. Although most of the provisions of this Recommendation apply to all archiving services in general, including archivists and Archives, the Recommendation also presents certain particular provisions for each type of body in charge of archiving.
19. Further on the Recommendation has defined “electronic documents” as legal documents “which have the capacity to create rights or have evidential value and may be submitted to a public repository”. The reasons for limiting the scope of the Recommendation to legal documents are attributable to the specific Terms of Reference of the Committee of Experts on Information Technology and Law (CJ-IT) of the Council of Europe which was invited to promote the use of information technology in the legal field as well as to the particular importance of electronic legal documents which necessitated the preparation of a specific recommendation on their archiving.
20. Electronic documents comprise documents originally created and used in electronic form, including encrypted electronic documents and documents certified by electronic signature, as well as originally paper-based or analogue documents that have been digitised. The Recommendation is not aimed at defining types and categories of electronic documents to be archived. It is based on the assumption that, as far as archiving is concerned, a document in electronic form is subject to the same legal archiving requirements as a paper-based document. Nevertheless, the Recommendation may apply both to finalised documents and to preparatory documents that may be of major importance in determining the evolution of the finalised document in question.
21. Finally, the Recommendation has adopted a broad definition of the “legal sector” comprising all public or private organisations that may create or receive electronic documents in the meaning of the preceding definition. In particular, the following comprise legal sector organisations: the courts, prosecution authorities, the police, the penitentiary system, public registers, official journals, various institutions involved in legislative and regulatory processes, civil status authorities, lawyers and notaries. Moreover, the guidelines on archiving electronic documents discussed in this Recommendation are applicable, to a large extent, to the whole of the public administration sector as well and not exclusively to the legal sector.
Principle 2 – General provisions
22. This Principle lays down the general principles for the archiving of electronic documents that are applicable to the entire archiving process and to all stakeholders concerned. It underlines, in particular, the need to ensure that the pertinent legislation and regulations in the field of archiving are respected with regard to the electronic documents. It can unfortunately be seen that the existing rules relating to the archiving of paper-based documents are often not applied in a consistent manner to electronic documents. However, the concept of archiving transcends the notion of media and is valid for all paper, analogue or digital media. It follows that the same archiving requirements should apply to all documents regardless of the type of media. States should therefore ensure that the legal norms regulating the archiving of paper-based documents are also applied to electronic documents.
23. Objectives of archiving are the preservation of the integrity of electronic documents as well as their continuing readability and accessibility. The archiving procedures are conceptually the same for electronic documents as for the archiving of paper-based documents. All the same steps need to be taken to ensure that only what is needed is kept; that what is kept is organised, catalogued, conserved and accessible; and that the needs of the creating authority and anyone else who needs access to such documents can be met in the easiest and most user-friendly way. These concepts apply to electronic documents in the same way as they do to paper-based documents. In this regard, it is recommended that archivists be involved in and consulted on the period of preservation and public availability of archived electronic documents.
24. To facilitate the archiving of electronic documents, the Principle recommends that creation of an electronic document should be accompanied by the creation of data about its data, called metadata, which will permit the retrieval, restitution, readability and correct interpretation of the electronic document during the period of its preservation, and after migrations between media and formats.
25. Metadata may include any or all of the following elements. They describe the institutional and administrative context in which the document has been produced. They also indicate key dates including not only the date of its creation but also of its transmission, both internally and externally, and its receipt by the recipient. Metadata indicate the producer of the document, its author, its signatory and its link to the signature, the parties that the document concerns, the title or an analysis summarising the subject of the document, and its links with any other document referring to the same subject, including paper-based or analogue documents. Metadata concern also whatever characterises the logical structure of the document as well as any elements, including resources external to the document, that permit a correct understanding of the document in time, in particular, explanations of codes that may be used in the body of the document.
26. Metadata apply also to elements that permit the establishment of the original presentation of the document. Metadata comprise, in addition, management elements such as duration of preservation and of public availability. Finally, metadata concern technical elements that have led to the creation of the document and its management: software and hardware environment, format of data, identification of its physical medium as well as all the technical or organisational operations affecting the document after its creation throughout its life span.
27. In the case of the archiving of encrypted electronic documents, it would create additional problems to preserve decryption facilities and associated functions. In addition, the purpose of encryption is to protect the integrity of the electronic document while it is circulating in open networks. This function is no longer relevant once the document is stored on a fixed medium for archiving. The Recommendation therefore suggests the archiving of electronic documents in decrypted form taking into account the need for States to consider the security classification of documents and the timing of their electronic archiving.
28. The Principle ends with provisions on digitisation of paper-based or analogue documents. Taking into account the rapid development of information technology, legal sector organisations and archiving services will have to process documents stored on different digital, paper or analogue media. In these circumstances it may prove to be necessary and useful to produce electronic copies of paper-based or analogue documents in order to complete the corresponding electronic files.
29. The digitisation or production of digital copies of original paper-based or analogue documents is also of great value where widespread dissemination of the information contained in these documents is required. Digitisation also often serves as a conservation measure to prevent excessive access to paper or analogue media of mediocre quality. The principal advantages of digitising documents include:
- effective means of access (easier retrieval and search for documents) and reproduction of documents;
- the possibility of preserving the original, while at the same time providing extensive access and display possibilities;
- savings in the costs of distribution and reproduction of documents;
- saving of storage space;
- the possibility of transferring paper or analogue originals to repositories at a distance from the place of production.
30. On the other hand, a disadvantage of digitising documents originally paper-based or analogue is the high cost of digitisation and of the subsequent migrations needed to ensure the continued accessibility and readability of electronic documents in appropriate security conditions. It is expensive to create electronic images of paper-based documents on a large scale and, as technology advances and the bulk of the material held electronically increases, the cost of each migration will increase the total cost. The digitisation of paper-based or analogue documents should therefore be carried out on the basis of cost-efficiency considerations.
31. There is a general view that, as far as possible, documents should be archived in the medium in which they were created and should certainly not be moved to a less durable medium. For this reason, the Recommendation underlines that the objective of digitisation is to facilitate access to and retrieval of the contents of the document, but the original paper-based or analogue document should at all times be preserved.
Principle 3 – Organisational measures
32. As far as the initial preservation of electronic documents is concerned, it involves considerable costs for the maintenance and upgrade of software and hardware that separate small units of the legal sector may not be able to afford. An individual court, municipality or notary's office, might experience difficulties in keeping pace with the technological developments and the constant expense of upgrading software and hardware configurations required for continued readability of and access to electronic documents.
33. Although the Recommendation does not aim at imposing a concrete model for organising the initial preservation of electronic documents, member states should nevertheless ensure that the bodies dealing with the initial preservation are qualified and capable of carrying out this task. In particular, legal sector organisations could transfer electronic documents to specialised archiving services that will be in a better position in terms of finance, know-how and human resources to ensure their initial preservation.
34. In addition, the centralisation of electronic document archiving systems in specialised archiving services may create considerable economies, especially at the level of human resources. New technologies enable real time access to these documents and, consequently, physical distance no longer has a determining role in ensuring access and use of documents. In addition, even if electronic documents are preserved during initial preservation by specialised archiving services, the original producers or recipients of the electronic documents could nevertheless retain, for time periods prescribed by law, the exclusive right to issue certified copies and extracts from the electronic documents concerned. One must however take into account considerations of confidentiality for certain sensitive electronic documents or files such as testimonies in criminal cases, for example. In this case secure electronic communications should be used.
35. Concerning Archives and the subsequent archiving, it is clear that the legal arrangements that are already in place for the transfer of paper-based documents to Archives and for their subsequent archiving cannot be entirely applicable to electronic documents. An earlier transfer, after the closure of the files concerned, of electronic documents to Archives can effectively increase legal security by improving the conditions for the preservation of electronic documents. For this reason, the Recommendation suggests that the period before transfer to Archives could be shortened in the case of electronic documents.
36. A major organisational problem in the archiving of electronic documents is that the transfer of electronic documents to archiving services is rarely accompanied by metadata permitting correct interpretation of these documents. Metadata are also indispensable because the only migration techniques currently in use for ensuring long-term preservation of electronic documents lead to separation of data, which become incomprehensible in the absence of metadata capable of explaining their original structure and meaning. There are archiving services all over Europe with statistical and other electronic information of high value but, as this information is not properly explained, it has been impossible for archiving services to use it and this information has accordingly been lost.
37. The Principle addresses also the financial issue in the archiving of electronic documents taking into account that Archives are in general underfunded to keep abreast of modern technology. At present they are funded to deal with paper-based documents that are cheaper to look after in the long term than electronic ones. The Recommendation therefore invites member states to provide the Archives with the required financial means to deal with these new tasks.
38. With such additional means, Archives will be able to implement electronic document archiving programmes, permitting the automation of transfers, of the integration of documents in their own information systems, and of the storage and public availability of data. The know-how thus acquired by experience and by the technical supervision that they will exercise in archival matters, will enable Archives to provide authoritative recommendations to archivists and other stakeholders concerned.
Principle 4 – Security measures
39. There are many security-related risks in the archiving of electronic documents. For security reasons all operations, both technical and organisational, concerning an electronic document from its creation and during its entire life span, should be documented so that they can be traced right back to the beginning. Regular external audit could ensure that the traceability of these operations is well provided for.
40. Archiving services should scrupulously verify the transfer of electronic documents for archiving. It is important to verify the identity of the sender, that the document originates from an authorised person or organisation and that there have not been any alterations in the documents during transmission. This verification can be carried out by the means of electronic signature of the transfer. Archiving services should then guarantee that what has been sent to them corresponds to what has been produced, and the archived electronic document concerned can subsequently be considered reliable and valid in the absence of proof to the contrary.
41. The Principle further lays down recommendations concerning human resources and technical security requirements in the archiving of electronic documents. It states, in particular, that the responsibility for the maintenance of information systems1 used for the archiving of electronic documents should be entrusted to specially authorised and trained staff such as system administrators.
42. To protect the integrity of the archived electronic documents, the use of modern technical means is recommended that prevent or at least enable detection of unauthorised alterations in the archived electronic documents such as electronic signatures or non-rewriteable storage media. Beside back-ups, it is essential to constitute at least two copies of the same electronic document submitted to archiving, if possible on different media. This procedure, called “redundancy” presents a crucial element in the archiving of electronic documents.
43. Finally, the Principle draws attention to the storage conditions of the electronic document archiving systems. Appropriate storage conditions for these systems would be premises protected against light and dust, with the magnetic field as weak as possible, by avoiding in particular proximity to electric engines or transformers, with a temperature of about 20°C and relative humidity of about 40%. Media should be stored in containers that prevent any deformation or scratching. All backup media should be kept safely and separately from the main archiving system. Access to the electronic documents archiving systems should be subject to authorisation.
Principle 5 – Conservation measures
44. Ensuring continued access to digital information necessarily involves transformation of electronic documents to current state-of-the-art technologies and software and hardware configurations. The present solution, discussed in this Principle, is migration, which may consist of transferring data from one storage medium to another without touching the data and information, or it can also involve changes to the format or encoding of data.
45. Migration of storage media should be undertaken regularly according to the nature of the storage media in question. Storage media are subject to degradation and deterioration in time, to aging and to wear. The longevity of storage media is generally short and, for certain among them, can be limited to less than one year. Even for optical CD-Roms that are at present the most reliable and most widely used storage media, their life span generally does not exceed 10 years. For this reason, it is recommended that specific migration plans for each type of storage media should be drawn up. In addition to degradation and physical wear, one must also take into account the technological obsolescence that necessitates replacement of media by their newer versions.
46. Budgetary considerations are very important in the efficient management of migration. It has to be taken into account that the archiving of electronic documents requires not only an initial investment but also considerable on-going maintenance costs. For this reason, the dates of migrations should be planned in advance and taken into account in the preparation of budgets because there is always a tendency to postpone or delay migrations.
47. Migration may also consist of converting documents into new formats made necessary by technological developments which should, accordingly, be constantly under review. Migration to new formats consists of separating data and information from all software used in their constitution and of converting them, if necessary, in a standard language offering guarantees of durability such as ASCII and UNICODE. Migration to new formats can, accordingly, lead to the loss of the original presentation and layout of electronic documents.
48. This problem could be overcome by means of another technique - emulation - use of new software that simulates the functionality of older hardware and software, enabling the preservation of not only the contents but also of the original display features that were available with the older software. Data would be preserved with the programme that was used for their creation. With emulation the capacities of this software would be maintained along with the evolution of hardware - the old programmes will be activated thanks to the emulator. However, emulation techniques in the field of archiving of electronic documents are at present only at an experimental stage.
Principle 6 – Document formats
49. Archiving of electronic documents is further complicated by the existence of a large diversity of document formats that create compatibility and exchange problems. In addition, certain de facto formats presently in use are not appropriate for archiving and do not lend themselves to data extraction and the possibility of structured data exchanges.
50. It is desirable to give preference to durable and open formats. Ideally they should facilitate automatic exchanges of data and enable subsequent migrations of data and processing of information in various languages. Member states should preferably select standardised languages and formats that have been subject to international (ISO, W3C) standards or recommendations.
51. Concerning text documents, Extensible Mark-up Language (XML) ensures a strict separation of the presentation, contents and structure of the document thus enabling data exchanges and interoperability between different applications using this language2. The separation of the contents from presentation of data may however pose problems for the integrity of documents because the presentation and formating of documents, which are sometimes essential especially in the legal sector, cannot be welded together. It is therefore of crucial importance for archiving to preserve, along with the XML document, its DTD (Document Type Definition) or its Schema and its style sheet in order to ensure correct interpretation of the XML document.
52. There is a lack of consideration of the archival consequences of the selection of different document standards and formats. Very few administrations ever think of the archival consequences of the decisions they take. While a paper file is a paper file whatever authority has created it, it is all too often the case that within a single administration there may be hundreds of different electronic case processing systems in use. This has arisen because information technology has rarely been introduced evenly across a national government, or a single authority.
53. The consequence of this diversity is that archiving services could in theory find themselves the recipients of electronic records in such a variety of formats that they would not be able to deal with them all and ensure their readability over time. The archiving services, which will be the ultimate recipient of the electronic documents being produced, should therefore be involved in the creation of document standards, and they should be allowed, at a very early stage, to make certain practical stipulations as to format and metadata.
Principle 7 – Electronic signatures
54. An increasing number of documents will be communicated to the legal sector in electronic form thanks to the legislation on electronic signatures3, which is presently being enacted in European States4 and which gives duly electronically signed documents the same legal value as paper-based documents or even the same legal value as authentic paper-based documents such as those produced and attested by notaries, courts and other public legal services.
55. There are particular difficulties related to the archiving of electronic documents certified by electronic signature if the currently recommended system based on Public Key Infrastructure is applied. At present there are no long-term means of verifying an electronic signature. Likewise, the certification authority that issued the certificate for the particular electronic signature may no longer exist. There is also no assurance that this particular system of electronic signature will be maintained in the long term. In addition, the migrations to new formats that are required to ensure the continuing readability of documents will inevitably lead to modification of the format, thus causing the destruction of the signature verification mechanisms.
56. The Recommendation is based on the principle that each organisation concerned checks electronic documents by verifying their electronic signatures when these documents are under its control. For example, a notary would verify the electronic signatures of the parties at the moment of the drawing up of a deed and before its transmission to the archiving services. Because of this division of responsibilities between the creating authority and archiving services and taking into account the technical constraints related to the preservation of electronic signatures, the Recommendation suggests that archiving services should not be held responsible for maintaining the functionality of the initial electronic signatures.
57. The Recommendation accordingly suggests that an archived electronic document should be considered reliable and valid if it is transferred to and preserved by the archiving services in accordance with the security requirements, even though the archiving services could no longer verify the initial electronic signatures.