Is it permissible for Department of Justice-certified PREA auditors to conduct any part of the onsite portion of the PREA audit remotely?
The onsite phase of a PREA audit consists of three core components: site review, interviews, and documentation selection and review. Due to the impact of the COVID-19 pandemic on travel and access to some confinement facilities, the PREA Management Office (PMO) at the Bureau of Justice Assistance in the Office of Justice Programs of the U.S. Department of Justice (DOJ) has received multiple requests for guidance if it is permissible for DOJ-certified PREA auditors (auditors) to conduct any components of the onsite portion of the audit remotely. The PMO’s guidance for each component of the onsite audit is as follows:
|Parts of the onsite portion of the PREA audit:||Remote?||In-person?|
|Interviews: non-supervisory staff||No||Yes|
|Interviews: supervisory staff||Yes||Yes|
Auditors who have already conducted or are in the process of conducting any portion of the onsite audit remotely
These requirements are effective as of the date of its release, November 30, 2020. As a result, PREA audits that were completed prior to November 30, 2020 are not impacted by these requirements. However, auditors who are currently conducting – or who have contracted to conduct one or more remote audits in the future – that contradict these requirements should contact the PMO immediately at [email protected].
IMPORTANT: In order to preserve the integrity of the PREA audit, this guidance restricts the ability of auditors to conduct certain components of the onsite phase of the audit remotely and is specific to facility audits. Auditors should exercise extreme caution in determining whether or not it is safe to go onsite to a facility/agency to complete the onsite phase of the audit. The health and safety of auditors, agency/facility staff, and inmates is paramount. The PMO anticipates the current outbreak may necessitate auditing delays, and recognizes that this may impact agencies’ ability to uphold requirements in the PREA Standards. The PMO will attempt to minimize any adverse consequences to facilities, DOJ-certified auditors, or others who may be unable to comply in a timely fashion with PREA requirements because of efforts to address, manage, and mitigate the effects of COVID-19, to the extent permissible under statutory and regulatory requirements.
DOJ-certified PREA auditors are not permitted to conduct the site review portion of the onsite audit remotely, as it does not comport with the requirements in the PREA Standards, PREA Auditor Handbook (Handbook), and Audit Instrument.
PREA Standard 115.401(h) states, “The auditor shall have access to, and shall observe, all areas of the audited facilities.” As described in the Handbook, in order to meet the requirements in this Standard, the site review portion of the onsite audit must include a thorough examination of the entire facility.1 The primary purpose of the onsite phase of the PREA audit is to assess, in person, the day-to-day practices used by facility staff. This review of day-to-day practices requires active engagement by the auditor with critical facility functions, such as observing intake and risk screening; listening for cross-gender announcements; testing the working conditions of telephones, kiosks, and other devices; accessing reporting entities; and discerning supervision practices.2
A remote site review would introduce significant barriers to meeting the requirements described above. Such barriers include, but are not limited to, the following:
- Ensuring the auditor has true, unfettered access to – and is able to observe all areas of – the audited facility.
- Unreliable or inadequate Wi-Fi coverage at the facility.
- Concerns regarding the privacy and security of videoconferencing platforms, particularly related to video streaming of housing units or other areas of the facility where inmates3 may be in a state of undress.
- The ability of auditors to objectively test and meaningfully engage with critical facility functions, such as testing the phone system to determine whether inmates can access the reporting hotline, or observing intake and screening protocols.
Because of these barriers, it is not feasible for an auditor to objectively assess and make compliance determinations of a facility’s practices without being physically onsite for the site review.
In addition, PREA Standard 115.401(e) provides that, “The agency shall bear the burden of demonstrating compliance with the standards.” If an auditor is unable to conduct a thorough in person examination of the facility, and day-to-day practices of facility staff, the agency will be unable to sufficiently bear the burden of demonstrating compliance with the Standards.
1 PREA Auditor Handbook, p.40.
2 PREA Auditor Handbook, p.40.
3 In this document, the term “inmate” is used generally to refer to inmates, residents, and detainees, except when discussing certain types of facilities or sets of Standards, in which case more specific terminology is used.
DOJ-certified PREA auditors are not permitted to conduct virtual interviews, either by phone or by video, with inmates, as this does not comport with the requirements in the Handbook and Audit Instrument.
The PREA Standards governing interviews with inmates are as follows:
- 115.401(k) – “The auditor shall interview a representative sample of inmates, residents, and detainees, and of staff, supervisors, and administrators.”
- 115.401(m) – “The auditor shall be permitted to conduct private interviews with inmates, residents, and detainees.
The interview process is among the most important, and most challenging, elements of a PREA audit. During the interview, it is critical that inmates have an opportunity to speak privately with an auditor.4 By conducting private, one-on-one interviews with inmates in person, auditors provide a safe space where inmates can freely discuss their experiences at the facility on sensitive issues related to sexual safety. If privacy cannot be assured, then Standard 115.401(m) cannot be satisfied.
Conducting virtual interviews would introduce significant barriers to meeting the requirements described above. Such barriers include, but not limited to, the following:
- An auditor conducting a virtual interview would not be able to guarantee that the interview is private (e.g., whether anyone else is in the room with the inmate or in hearing distance, or if the phone or video feed is being recorded).
- Inmates may not believe that a virtual interview is private or is not being recorded. This could lead to a chilling effect on interviewee participation or disclosure, which implicates the reliability of an auditor’s compliance determinations.
- Virtual interviews make it more difficult to build rapport, establish trust, read body language, and assist inmates who may experience distress, as a result of participating in an interview.
4 PREA Auditor Handbook, p.47.
PREA Standard 115.401(k) mandates that auditors “interview a representative sample of . . . staff, supervisors, and administrators.” Although the Standards do not explicitly require privacy during staff interviews, it is critical that auditors are able to provide a safe space where staff can freely discuss their experiences at the facility with sensitive issues related sexual safety.
Supervisory and administrative staff, because of their positions of authority and access to private locations such as secure offices, are typically more likely to be able to speak privately and freely to auditors than non-supervisory and non-administrative staff. As a result, DOJ-certified PREA auditors who are conducting facility-level audits, are permitted to conduct virtual interviews, including by both phone and video, of supervisors and administrators, as well as certain specialized staff explicitly named in the Handbook, including:
- Agency head or designee
- Warden/facility director/superintendent or designee
- PREA coordinator
- PREA compliance manager
- Agency contract administrator
- Intermediate or higher level facility staff responsible for conducting and documenting unannounced rounds to identify and deter staff sexual abuse and sexual harassment
- Supervisory-level education and program staff who work with youthful inmates, if any
- Supervisory-level medical and mental health staff
- Supervisory-level non-medical staff involved in cross-gender strip or visual searches
- Administrative (human resources) staff
- Sexual Assault Forensic Examiner (SAFE) and Sexual Assault Nurse Examiner (SANE) staff
- Volunteers and supervisory-level contractors who have contact with inmates
- Investigative staff
- Supervisory-level staff who are involved in screening for risk of victimization and abusiveness
- Supervisory-level staff who supervise inmates in segregated housing
- Staff on the sexual abuse incident review team
- Designated staff member charged with monitoring retaliation
- Supervisory-level first responders, both security and non-security staff
- Supervisory-level intake staff
Auditors are not permitted to conduct non-supervisory and non-administrative staff interviews remotely, either by phone or by video, as these staff may be less able to speak privately and freely to auditors than supervisory and administrative staff.
Given the nature of agency-level audits, the guidance regarding conducting supervisory and/or administrative interviews remotely differs slightly from the guidance provided for auditors conducting facility-level audits. Auditors who are conducting an agency audit may interview some agency-level staff in advance of the onsite portion of the audit (e.g., to accommodate difficult schedules); however, the expectation is that the majority of agency-level staff interviews must be conducted in person. The agency should work with the auditor to schedule the audit at a time when relevant staff will be available for in-person interviews.
To make accurate compliance determinations, auditors should ensure that all staff are able to speak privately and freely, and confirm that no one pressured them to consent or refuse to be interviewed, or coached them on what to say during the interview.5
5 PREA Auditor Handbook, p.54.
Auditors are permitted and encouraged to conduct the majority of their documentation collection and review remotely; this applies to auditors conducting facility- and agency-level audits. Auditors should use the onsite portion of the audit as an opportunity to supplement the documentation selection conducted pre-onsite by sampling:
- Any documents that could not be obtained prior to the onsite audit (e.g., documents that were unavailable pre-onsite, documents of allegations in the period of time between the submission of the PAQ and the onsite phase of the audit, documents that have been updated/revised prior to the onsite phase of the audit).
- Relevant records for persons confined in the facility, staff, contractors, and volunteers who the auditor interviewed onsite (e.g., training records, background check records, risk screening records, education records of confined persons, medical files, and investigative files) for corroboration purposes.
Auditors must follow the relevant PREA Standards (including 115.401(f), 115.401(g), 115.401(i), and 115.401(l)), and should carefully review the Auditor Compliance Tool and the Checklist of Documentation to confirm that they have reviewed all relevant documentation for each audit. Even remotely, auditors are always required to select documents for review, themselves, and must not rely on the facility or agency to make these selections.6
The Online Audit System provides a secure, electronic platform for auditors to collect and review sensitive audit documentation, including audit documentation that contains Personally Identifying Information (PII) or Personal Health Information (PHI), provided by audited facilities and agencies. The Online Audit System keeps all important documents in one place without risking loss, theft, or intercepted communications.
6 PREA Auditor Handbook, p.59.
Agency audits may not be conducted entirely remotely. While some interviews with agency-level staff may be conducted in advance of the onsite portion of the audit (e.g., to accommodate difficult schedules), the expectation is that auditors need to conduct the majority of agency-level staff interviews in person. The agency should work with the auditor to schedule the audit at a time when relevant staff will be available for in-person interviews. Similarly, while the bulk of documentation sampling should be done in advance of the onsite, the expectation is that corroborating documentation should be self-selected by the auditor during the onsite portion of the audit. For more information on agency audits click here and find under “the OAS agency audit”