Electronic Records and Legal Admissibility
Electronic Records and Legal Admissibility
For whom is this guidance intended?
1. This guidance is intended for University staff with responsibility for ensuring that the electronic records they create are assigned an appropriate legal weight. It is of particular relevance to staff who:
a. need to maximise the legal weight of their records for statutory or regulatory reasons;
b. are responsible for the information in corporate databases;
c. are looking to improve or update their current electronic filing systems or databases.
2. The guidance provides a high level overview of the issues, our current understanding of the law, and details the best practice requirements.
What are electronic records?
3. Electronic records are records stored in digital format. There are two main types of electronic record:
- Those records which are “born” or created electronically. For instance word processor documents, e-mails, spreadsheets or database records.
- Those paper records which are copied to electronic media. For instance documents which are scanned into an electronic filing system, or database records that mimic paper documents.
These notes only concern “born” electronic records, for advice on other records please consult the other guidance available from the Records Management Section.
What is legal admissibility?
4. Legal admissibility concerns whether or not a piece of evidence (in this case an electronic record) would be accepted by a court of law. Some evidence might be admitted to the court (i.e. is legally admissible) but the opposing lawyer might call the evidential weight of it into question. For instance can it be proved that the record has not been tampered with? Is it possible to prove that the system the record is kept in is a secure system? Is it possible to prove that the system was secure throughout the lifetime of the record? If not the evidential weight placed on the record would be reduced, which has the potential to harm severely the case being fought.
5. There are no firm rules for determining whether an electronic record would be legally admissible but it is possible to maximise the evidential weight of a document by setting up authorised procedures and being able to demonstrate in court that those procedures have been followed.
Why might the legal admissibility of electronic records be a problem?
6. Many key records are now held electronically. It is important that, should these records be required as evidence in a court of law, their authenticity can be proven. Electronic records are particularly vulnerable to tampering because it is possible to make additions or deletions that are not apparent to the viewer of the document. It can also be difficult to tell the difference between the original, authentic record and copies of it, which may have been altered.