Substitute Preservation

1. Definition and main features of Substitute Preservation

Substitute preservation is a legal/IT procedure regulated by Italian law, capable of guaranteeing over time the legal validity of an electronic document¹.

With this system it is possible — in terms of legal and probative effects — to equate the electronic document to the paper document, provided that the technical and regulatory rules relating to the matter are respected.

The system is based on:

1. Electronic Document²
2. Qualified electronic signature (in its species of digital signature)³
3. Time Stamp⁴

From what is summarily described, it is precisely the respect of technical rules in the formation of the electronic document that guarantees the immutability and invulnerability of the document over time. In this sense, both the Decree of the Italian Prime Minister 13 January 2004 entitled “Technical rules for the formation, transmission, preservation, duplication, reproduction and validation, including temporal, of electronic documents” (G.U. 27 April 2004, no. 98), and the RESOLUTION 19 February 2004 of CNIPA (today DigitPA) “Technical rules for the reproduction and preservation of documents on optical media suitable to ensure conformity of documents with the originals” — Art. 6, paragraphs 1 and 2, of the consolidated text of legislative and regulatory provisions on administrative documentation, referred to in Italian Presidential Decree 28 December 2000, no. 445 (Resolution no. 11/2004) — are fundamental.

2. Effects of Substitute Preservation

Where substitute preservation has been carried out according to the rules described below and operated with tools that comply with the technical rules, private persons and PAs may replace all the documents whose preservation is required by law or regulation with their reproductions on magnetic media.

This is the summary of art. 6 of Italian Presidential Decree 445/2000, whose content has been replaced, integrated and expanded by articles 22 and 23 of the CAD. Art. 22 (“Original electronic documents and copies. Formation and preservation”):

The acts formed with IT tools, the data and the electronic documents of public administrations constitute primary and original information from which it is possible to make, on different types of media, reproductions and copies for the uses permitted by law⁵.

3. The Substitute Preservation process

Substitute preservation goes through certain pre-determined phases, well highlighted in articles 3 and 4 of CNIPA resolution 11/2004. In particular, the following phases can be highlighted:

1. registration
2. application of the digital signature
3. application of a time stamp
4. authentication by a public official if the document is a unique original

If these are the general phases, the procedure has peculiarities depending on the type of document being “preserved”. The definitions of Electronic Document and Analogue Document come into play. Within the analogue document genus we find the unique original document and the non-unique original.

4. Substitute preservation of electronic documents

Preservation begins with storage on a suitable magnetic medium.

By storage is meant the process of transposition onto one of the aforementioned media, through a processing process, of analogue or electronic documents — also signed under art. 10, paragraphs 2 and 3, of Italian Presidential Decree 28 December 2000, no. 445, as modified by art. 6 of Italian Legislative Decree 23 January 2002, no. 10⁶.

Once storage has been carried out, the second step is the application — on the set of documents, or on their electronic evidence containing one or more imprints⁷ — of the time stamp and digital signature by the person responsible for preservation⁸. Once these steps have been performed, provided the technical rules have been respected, the preservation can be said to be completed and productive of the effects referred to in the previous paragraph.

5. Substitute preservation of analogue documents

For analogue documents — more easily definable as paper documents — substitute preservation also begins with storage on optical media. The image is transposed onto media, presumably via scanner.

Once storage has been carried out, the procedure to follow is the same as that provided for electronic documents.

Where the stored analogue documents are unique originals, greater care is required. It will therefore be necessary that, after the person responsible for preservation, a public official takes care to apply their digital signature and time stamp so as to attest the conformity of what was stored to the paper originals.

If the operations are correctly carried out, the destruction of paper documents is possible as indicated by art. 23 of the CAD; in any case, those documents that have particular historical and cultural value are saved, for which destruction is not allowed.

6. The person responsible for preservation

It is the person who guarantees preservation and oversees the procedure; competences and characteristics are specifically identified in art. 5 of resolution 11/2004.

Their tasks can be summarised as follows:

1. implement and maintain a suitable hardware and software system, taking care of the necessary updates and technological adjustments
2. define the preservation system, that is, the IT and organisational procedures capable of managing — in full compliance with the tax and technical regulations in force — the substitute preservation process
3. constantly verify the correct technical functioning of the preservation processes
4. define system requirements and internal procedures (with particular attention to security and traceability profiles) through the drafting of an appropriate operating manual
5. verify over time the availability and accessibility of preservation programmes and storage media, as well as the legibility of preserved documents
6. define and implement the organisational and IT procedures suitable to exhibit, in response to requests from tax Authorities, the preserved documentation

7. Technical rules

The entire discipline is today contained in the DPCM of 30 March 2009.

It deals with defining the technical discipline relating to:

1. Qualified electronic signature
2. Time validation
3. Certifying parties

Particular attention must be paid to the type of electronic document.

Indeed, where the document has macro instructions inside it, given the possible vulnerability, the document does not produce the effects provided by the code; therefore for this type of documents one cannot speak of substitute preservation.