Technical Bulletins

Changes to the Freedom of Information Act - 2017 Act No.67 (R. 102, H. 3352) 

Thursday, June 8, 2017 3:11:00 PM Categories: FOIA

This Technical Bulletin outlines major changes to the process of handling requests for documents and records to counties and all other public bodies under the Freedom of Information Act (FOIA). These changes are the result of several years of efforts by the Press Association and others to make changes to the Act. Several stakeholders, including SCAC were involved in amending key provisions in this legislation. You can find a copy of the act here.

The Act changes the response time to a FOIA request and adds a timeframe for the documents to be produced. It requires fee schedules and sets a threshold for hourly charges. A deposit can be required for large or time consuming FOIA request, and the public body can withhold the documents until they receive full payment. A person can bring an action in circuit court for violation of FOIA and a public body can bring an action for unduly burdensome or improper FOIA requests. The Act replaces the criminal penalties formerly under FOIA with a civil penalty. It also makes it a crime to obtain personal information from a county or other political subdivision for commercial solicitation. Changes are discussed more fully below. In addition, the Act makes dash cam videos and recordings public documents.

Section 30-4-30(A) of the Act states that a public body is not required to create an electronic version of a public record when one does not exist. If records are in an electronic format and are transmitted to a requestor, a public body may not charge a copy fee. However, if a public body agrees to convert documents that are not in an electronic format, the public body may charge for the staff time required to transfer the documents to an electronic format. The fee shall not exceed the prorated hourly salary rate of the lowest paid employee capable of fulfilling the request. The Act is silent on how a public body is to list the hourly rate on the fee schedule, especially in light of the fact that depending on the nature of the request, any number of persons may be involved or capable of fulfilling the request. A deposit, not to exceed twenty-five percent of the total reasonably anticipated cost for reproduction of the records, may be required prior to a public body searching for or making copies of records.

Section 30-4-30(C) states that a public body has ten business days to respond to a written FOIA request if the records are two years old or less. This response constitutes the final opinion of the body as to the availability of the records. The determination is not required to include a final decision as to whether specific portions of the documents or information may be subject to redactions based on exemptions. If the request is granted, the records must be produced no later than thirty calendar days from the date on which the final determination was provided. If the records requested are more than two years old, a public body has twenty business days to respond. If the request is granted, the records must be produced no later than thirty-five calendar days from the date on which the determination was provided. The response and production deadlines may be extended by written mutual consent of the requestor and public body, and consent to an extension cannot be unreasonably withheld. If a public body fails to respond to a written FOIA request within the allotted timeframes, the request must be considered approved as to nonexempt records, while the exemptions still apply.

Section 30-4-30(D) makes certain records available for public inspection and copying without a written FOIA request during normal business hours. For example, all documents produced by the public body or its agent that were distributed to or reviewed by a member of the public body during a public meeting for the preceding six-month period must be immediately available for inspection and copying. This would include subcommittee meetings of the public body as well as meetings of boards and commissions that are appointed by the public body. A public body may comply with this section by placing all of the documents on their website. However, the documents must still be produced if they are requested.

Section 30-4-50 makes dash-cam videos and audio recordings public records. Law enforcement may apply to circuit court for an order to prevent the release of the dash-cam data upon a showing by clear and convincing evidence that the data is exempt under §30-4-40(a)(3) and that the reason for exemption outweighs the public interest in disclosure. A circuit court hearing must be requested within fifteen days of receipt of the request for disclosure. A court order to withhold the release of the recording data must specify a definite time period for the withholding of the release of the recording data and must include the court’s findings.

Section 30-4-100 allows a citizen to apply to circuit court for a declaratory judgment or injunctive relief to enforce a FOIA violation. A hearing must be held within ten days after filing upon all parties being served with notice of the action. If a person or entity prevails against the public body, they may be awarded reasonable attorney’s fees and costs of litigation. Section 30-4-110 allows a public body to request a hearing in circuit court to seek relief from an unduly burdensome, overly broad, vague, repetitive, or otherwise improper FOIA request. It also allows them to bring an action for clarification when they are unable to make a determination as to whether the information is exempt from disclosure. If a court determines that the records are not subject to disclosure, the determination constitutes a finding of good faith on behalf of the public body and serves as a complete bar from attorney’s fees should the determination be reversed on appeal. If the court determines that a public body has arbitrarily and capriciously violated FOIA, it may impose a civil fine of five hundred dollars in addition to actual or compensatory damages.

Finally, §30-2-50 prohibits a person or private entity from knowingly obtaining personal information from a public body for commercial solicitation. Each state agency, local government, and political subdivision of the State shall provide a notice to all requestors which states that obtaining or using public records for commercial solicitation directed towards any person in this State is prohibited. A person who violates this provision is guilty of a misdemeanor, and upon conviction, must be fined up to five hundred dollars or imprisoned for up to one year, or both.

This Technical Bulletin does not constitute legal advice. It is intended for general information on this topic. Please consult your county attorney for specific issues affecting your county.

Blanket Fidelity Bond for County Officials and Employees  

2005 Act No. 58
Wednesday, January 27, 2016 9:30:00 AM

Bonds for county officials and employees vary in the amount required and who has the authority to set them. Some amounts are set specifically by statute, while others are set by the county, clerk of court, or the Attorney General. There appears to be no rhyme or reason as to how they are determined or who gets to determine the amount of bond. More importantly, the amounts are inadequate to protect the public in the event a public official or employee engages in misconduct that has financial consequences to the public, especially with the liability limits under the Torts Claim Act. For example, the sheriff’s and the clerk of court’s bond is ten thousand dollars, while the coroner’s is set at two thousand dollars. Magistrate’s bond shall not be less than twenty-five percent of the collections for the previous year reported to the county treasurer as required by law; provided however, that if collections for the previous year did not exceed a total of two thousand dollars, the county governing body in its discretion shall be authorized to waive any bond requirements for such magistrate. At the other extreme, there are two statutory provisions setting the bond for probate judges. One sets bond at five thousand dollars (§14-23-40), while another provision sets it at one hundred thousand dollars (§14-23-1050).

Additionally, since these bonds are specific for the individual in these positions—and not the position itself— every time there is turnover in a position, the county has to secure a new bond, which can be an administrative nightmare. This problem was highlighted in the 2015 Court of Appeals case of State v. Griffin, in which the defendant in this criminal action asserted that his arrest was unlawful because the arresting sheriff’s deputies were not properly bonded at the time of his arrest.

Section 4-11-65 (Act No. 58 of 2005) allows the governing body of a county to purchase a blanket fidelity bond to cover all or a portion of the county officials and employees. This provision is a more convenient, simplified method of bonding county officials and employees. Whereas individual fidelity bonds cover the individual person, blanket fidelity bonds typically cover the county official’s position and thus does not need to be repurchased each time there is a turnover. In many cases, blanket bonds also provide increased coverage at a lower rate and require less administrative time and attention. Some counties have used this provision to purchase fidelity bonds in order to comply with the specific statutory bond requirements.

If a county chooses to purchase a blanket fidelity bond to cover all or a portion of county officials, the bond amount must meet or exceed the minimum bond required by statute. For example, if a county chooses to purchase a blanket fidelity bond covering the probate judge ($100,000 statutory requirement), treasurer ($20,000 statutory requirement) and the sheriff ($10,000 statutory requirement), then the minimum value of the bond cannot be less than $100,000.

Act No. 58 requires the county governing body to pass a resolution noting the purchase of a fidelity bond or the replacement of a fidelity bond covering one or more county officials or employees.

While it would be ideal to have a uniform fidelity bond requirement for every county, it would be impractical to do so due to the differences in exposure loss in each county. For example, in a county with a larger budget/asset base, if an official stole funds, the loss exposure could be substantially greater than in a smaller county. In addition, insurance companies would not likely be willing to provide the same amount of bond coverage for those two counties based on the differences in their assets. The fidelity bond would be limited to loss due to illegal activities of officials or employees such as embezzlement, fraud, or larceny.

It is also important to note that SCAC provides a blanket crime liability coverage of $100,000 for every county that is a member of the S.C. Counties Property and Liability Trust.

This Technical Bulletin does not constitute legal advice. It is intended for general information on this topic. Please consult your county attorney for specific issues affecting your county

Technical Bulletin Addendum: Meeting Notice and Agenda Requirements 

2015 Act No. 70 (R. 99, S. 11)
Tuesday, June 23, 2015 4:37:00 PM Categories: Meeting Notice/Agenda

This Technical Bulletin Addendum is to provide additional information not included in the Technical Bulletin dated June 16, 2015, which outlines requirements for posting and amending agendas in Act No. 70 of 2015. Please distribute this to other departments in your county.

Section 1 of the Act provides that an agenda for regularly scheduled or special meetings must be posted on a bulletin board in a publicly accessible place at the office or meeting place of the public body, and on a public website maintained by the body, if any, at least twenty-four hours prior to such meeting. Based on this language, it appears that a  public body that has a website is required to post the meeting agendas on their website in addition to posting them as they have traditionally  done at their meeting place at least twenty-four hours prior to a meeting. It is unclear whether a meeting has to be rescheduled if the a public body cannot post an agenda electronically twenty-four hours prior to a meeting because the website is down, but they have physically posted the agenda at their meeting place at least twenty-four hours prior to the meeting. SCAC will attempt to have the Act amended in January to clarify this issue.

This Technical Bulletin Addendum does not constitute legal advice. It is intended for general information on this topic. Please consult your county attorney for specific issues affecting your county.

Body Cameras - Law Enforcement 

Act no. _ of 2015 (R. 100, S. 47)
Friday, June 19, 2015 9:45:00 AM Categories: Body Cameras

This Technical Bulletin outlines legislation relating to body camera requirements for law enforcement officers and the funding and implementation process. The Governor signed this legislation into law June 10, 2015, and an act number will be assigned. A copy of this Act is linked for your convenience.

Section 23-1-240(A) defines body-worn cameras as an electronic device worn on a person’s body that records both audio and video data.

Section 23-1-240(C) requires the Law Enforcement Training Council (“LETC”) to conduct a study of agencies that currently use or are in the process of implementing body cameras. By December 5, 2015, the LETC must establish guidelines for body camera use and issue them to state and local law enforcement agencies.

Section 23-1-240(D) requires state and local law enforcement agencies to develop policies and procedures for body camera use pursuant to the LETC guidelines. These agencies will have until March 6, 2016, to submit their policies and procedures to LETC for approval. This provides the agencies, at a minimum, 90 days to develop their policies and procedures. The LETC has until June 4, 2016, to submit a report to the General Assembly with any recommendations for statutory changes relating to body camera use.

Section 23-1-240(E) establishes the Body-Worn Cameras Fund (“Fund”) within the Department of Public Safety to assist government agencies required to implement body cameras. The Fund and its disbursements to agencies will be managed by the Public Safety Coordinating Council. Once LETC approves a law enforcement agency’s policies and procedures, the agency may apply to the Public Safety Coordinating Council for funding. At a minimum, the disbursement must fund the initial purchase, maintenance, and replacement of body cameras and the ongoing costs associated with maintenance and data storage. No law enforcement agency will be required to implement the use of body cameras until the agency has received full funding. The statute requires Fund disbursements to be fair and equitable.

It is estimated that the first year costs for full implementation, at the state and local level, will be $21.5M and with recurring costs of $12.2M. As of the date of this bulletin, the Senate’s version of the FY 15-16 budget only appropriates $2.4M in recurring funds and $1.0M in nonrecurring funds for body cameras. This amount is still being debated in conference committee.
 
Section 23-1-240(F) provides that a law enforcement agency may implement and purchase body cameras even before its policies and procedures have been approved or before funding is received. The agency may later apply for reimbursement so long as it’s body camera policies and procedures have received LETC approval.

Section 23-1-240(G) makes clear that data recorded by a body camera is not public record under the Freedom of Information Act. Release and request of data is restricted to the following circumstances:

  • SLED, the Attorney General, and solicitors may request and must receive data for criminal justice purposes;
  • All law state and local law enforcement agencies, the Attorney General, or solicitors may release data in their discretion;
  • Law enforcement agencies may request and must receive data if relevant to an internal investigation regarding misconduct or disciplinary action of an officer;
  • In addition to the persons listed above, the following persons are entitled to request and receive data pursuant to the South Carolina Rules of Criminal and Civil Procedure or court order:
    • A person who is the subject of the recording;
    • A criminal defendant if the recording is relevant to a pending criminal action;
    • A civil litigant if the recording is relevant to the civil action;
    • A person whose property has been seized or damaged in relation to a crime which the recording is related;
    • A parent or legal guardian of a minor or incapacitated person listed in the first 2 subitems above; and
    • An attorney for a person described in all the subitems above.

If you would like to provide input to the Law Enforcement Training Council while it is conducting its study, please reference this link to the LETC’s membership and contact information.

This Technical Bulletin does not constitute legal advice. It is intended for general information on this topic. Please consult your county attorney for specific issues affecting your county.

Meeting Notice and Agenda Requirements 

2015 Act No. _ (R. 99, S. 11)
Tuesday, June 16, 2015 9:23:00 AM Categories: Meeting Notice/Agenda

This Technical Bulletin outlines requirements for posting and amending agendas. This Act is in response to the 2014 South Carolina Supreme Court decision in the case of  Lambries v. Saluda County Council et al, where the Court found that the Freedom of Information Act (FOIA) notice provisions found in §30-4-80 does not require an agenda to be issued for a regularly scheduled meeting. A copy of the Act is linked for your convenience.

Section 30-4-80(A) of the Act requires agendas for all meetings of public bodies. Agendas must be posted on a bulletin board in a publicly accessible place at the office or meeting place of the public body and on a public website maintained by the body, if any, at least 24 hours prior to such meetings. All public bodies must post on such bulletin board or website, if any, public notice for any called, special, or rescheduled meetings. Such notice must include the agenda, date, time, and place of the meeting, and must be posted as early as is practicable but not later than 24 hours before the meeting. This requirement does not apply to emergency meetings of public bodies. Once an agenda for a regular, called, special, or rescheduled meeting is posted, no items may be added to the agenda without an additional 24 hours notice to the public, which must be made in the same manner as the original posting. After the meeting begins, an item upon which action can be taken may only be added to the agenda by a two-thirds vote of the members present and voting. However, if the item is one upon which final action can be taken at the meeting or if the item is one in which there has not been and will not be an opportunity for public comment with prior public notice given, it may only be added to the agenda by a two-thirds vote of the members present and voting and upon a finding by the body that an emergency or an exigent circumstance exists if the item is not added to the agenda. An example of an exigent circumstance is where County Council has to approve a matter in order to meet a deadline for a grant qualification. If this item was not on the posted agenda and Council does not amend the agenda to address this matter, the county will lose the opportunity to obtain the grant. The Act does not change the notice requirements for matters that require a public hearing, such as the budget.

This Technical Bulletin does not constitute legal advice. It is intended for general information on this topic. Please consult your county attorney for specific issues affecting your county.

U.S. Supreme Court Opinion on Public Meeting Invocations 

Thursday, May 22, 2014 10:25:00 AM Categories: Public Meeting Invocations

This Technical Bulletin outlines a recent opinion of the US Supreme Court relating to invocations at public body meetings. A copy of the Court’s syllabus opinion in the case Town of Greece New York v. Galloway et al., is attached for your convenience. The full opinion is available online at www.supremecourt.gov.

On May 5, 2014, the United States Supreme Court narrowed the scope of legal challenges that may be brought against a public body’s invocation policies based on the content of the prayers. In this particular case the Town of Greece, New York had a policy of opening meetings with a prayer/invocation. The Town’s policy was open to clergy of all creeds, however, nearly all of the local congregations were Christian. As a result nearly all of the prayers at town meetings were Christian in nature. The plaintiffs, who were all citizens attending various meetings, challenged the policy arguing that the prayers preferred Christianity over all other beliefs. They sought to limit the town to “inclusive and ecumenical” invocations that referred only to a “generic god.” The Court’s opinion held that the first amendment to the Constitution  requires public bodies to maintain a policy of nondiscrimination, and may not intentionally create a pattern that over time denigrates, proselytizes, or betrays an impermissible government purpose. However, the Court held that the first amendment did not require the public body to search outside of its borders in order to achieve religious diversity. The Court also rejected the argument that individual prayers had to be nonsectarian. To hold such, the Court said, would require the public  body to act as a supervisor or censor of religious speech.

The Court further pointed to the fact that the audience to whom the prayers are directed are the lawmakers themselves and not the public. The prayers are meant to lend gravity to public proceedings, and not to coerce citizens to engage in a religious observance. The public attending these meetings may leave the room or otherwise not participate.

Public bodies should also look to § 6-1-160 of the SC Code of Laws for guidance concerning public invocation policies. The South Carolina Legislature enacted the Public Invocations Act in 2008, to provide a procedure for state and local governments to enact policies for an invocation to open a public meeting. The Act’s requirements apply to most public bodies, and includes many of those issues addressed by the Supreme Court in Galloway.

Pursuant to § 6-1-160(B) public bodies may enact an invocation policy by one of three methods: (1) the members of the body offer an invocation on an objective and rotating basis; (2) the body may elect a chaplain; or (3) the body may allow invocation speakers from the community of religious leaders where the body is located. If the body allows speakers from the community, to ensure objectivity, the body annually shall compile a list of all known, established religious congregations and assemblies by reference to local telephone books or similar sources.

Please consult your county attorney if you have specific questions about this opinion and its application to the SC Public Invocations Act. The SCAC staff is also available at 1-800-922-6081 to address general questions.

Electronic Waste Recycling Changes 

Act No. 129 of 2014 (R. 134, H. 3847)
Thursday, May 1, 2014 9:02:00 AM Categories: Electronic Waste

This Technical Bulletin outlines changes to the South Carolina Manufacturer Responsibility and Consumer Convenience Information Technology Equipment Collection and Recovery Act of 2010. A landfill disposal ban remains in effect for computers, computer monitors, televisions, and printers generated from households until 2021.  As a result, Act No. 129 provides a short-term plan for 2014 as well as a longer-term plan, beginning in 2015, intended to relieve counties of some of the costs associated with recycling these materials.

Act No. 129 requires  computer monitor and television manufacturers to provide a recovery program, recycle their market share on an annual basis, and register with and annually report to the South Carolina Department of Health and Environmental Control (DHEC). DHEC is working on drafting regulations to conform to Act No. 129 and is hoping to issue these regulations in the fall.
    
Recovery Obligations in 2014

Section 48-60-20 sets the recovery obligations on a calendar year basis. The recovery obligations are different for the first program year, 2014, than for the remaining years of the legislation, which sunsets in 2021. Section 48-60-50 of the Act states that during the 2014 program year, each television manufacturer must recover their market share of 4.8 million pounds of covered television devices, and each computer monitor manufacturer must recover their market share of 720,000 pounds of covered computer monitors. Covered devices included only those computer monitors and televisions marketed and intended for use by a consumer. The market share for 2014 is based upon the total weight of televisions and computer monitors collected and recycled in South Carolina in 2013. DHEC notified manufacturers of their market share obligation on April 4, 2014. In order to fulfill their obligations, manufacturers may act on their own or participate with other manufacturers through representative organizations (RO), which are designed to jointly fulfill the recovery obligations listed above.  

Recovery Obligations Beginning in 2015

Beginning in 2015, manufacturers may once again choose to fulfill their recovery obligation on their own or to join an RO. Any RO that may be formed must submit a plan to DHEC within 90 days of the start of the program year. The RO plan must provide for the recycling of all computer monitors and televisions collected by participating local governments specified in the plan based upon the proportionate membership that comprises the organization. DHEC is in the process of determining and defining what proportionate membership means.  

Under Section 48-60-55(K)(1), a manufacturer that chooses not to participate in a RO must recycle eighty percent of the weight of computer monitors and televisions sold by the manufacturer in South Carolina during the previous program year. DHEC will provide the manufacturer with their recovery obligation by March 15 of each program year. Any manufacturer that fails to meet their recovery obligations must either pay a shortfall fee or account for the amount of the shortfall in the following program year. Manufacturers looking to meet this eighty percent recovery obligation may look to bypass local governments by collecting the computer monitors and televisions from Goodwill or other store sites to avoid this shortfall fee.  Shortfall fees will be deposited in a dedicated account to be used for implementation of the program and to assist local governments in recycling covered devices.

Effect on County Operations

There are many questions regarding the implementation of Act No. 129 and the amount of money that it will save counties. Counties planning to renew contracts with their recycling vendors in 2014 need to be aware of the changes in 2015 that may affect the price they pay for disposal of the covered devices. Each county will need to review their current program and decide what best suits its individual needs. Each county should check with their recycling vendors to see which manufacturers the vendor may have relationships with and whether these manufacturers have elected to join a RO. This will allow each county to choose between maintaining their current operational arrangement or securing a new vendor arrangement backed by a manufacturer program.  Counties also need to make sure that recycling vendors are not double-dipping by collecting money from the RO as well as the county.

Counties also need to be aware that if they elect to contract with a recycling vendor that has an agreement with a manufacturer that is a member of a RO, the county must make all consumer electronics available for pick up at no cost, even those items which have value. Section 48-60-140 requires that counties ensure that the material they collect is transferred to a recycling or reuse facility that is certified by a third-party accreditation program, such as the Responsible Recycling Practices (R2) or e-Stewards.

The Governor signed this legislation making it effective on March 14, 2014. Please consult your county attorney if you have specific questions about the application of these changes. Feel free to contact Owen McBride of SCAC at 1-800-922-6081 or omcbride@scac.sc with any questions.

 

The Prison Rape Elimination Act Regulation 

Monday, September 30, 2013 12:16:00 PM Categories: Prison Rape Elimination Act

This Technical Bulletin outlines the Prison Rape Elimination Act Regulations (PREA) and its impact on jails and detention centers. PREA is a federal law that was passed by Congress in 2003. The law created a commission to study the issue, and then directed the Attorney General to issue national standards for the detection, prevention, reduction, and punishment of prison rape. After a decade of study, research, and public comment, the Attorney General issued the final PREA standards on June 20, 2012, which made them effective on August 20, 2012, with the audit cycle for state certification beginning on August 20, 2013. The standards apply to Federal Bureau of Prison facilities immediately upon their adoption. State compliance, by contrast, is to be enforced indirectly through a grant incentive. Namely, a state will lose five percent of federal grant money it would otherwise receive for prison purposes unless the state’s governor can certify each year that the State has adopted and is in full compliance with the PREA standards, or the governor submits an assurance that such five percent will only be used for complying with the standards in the future. PREA applies to local jails and detention centers as the federal statute defines “jails” to include “any confinement facility of a Federal, State, or local law enforcement agency whose primary use is to hold persons pending adjudication of criminal charges, persons committed to confinement after adjudication of criminal charges for sentences of one year or less, or persons adjudicated guilty who are awaiting transfer to a correctional facility.”

PREA requires covered agencies to adopt a written policy of zero tolerance towards all forms of sexual abuse and sexual harassment. It also requires that each facility be audited every three years, at the facility’s expense, to assess compliance. One standard in particular presents issues for jails and detention centers in this state. This standard prohibits juveniles from being housed with adult inmates or having unsupervised contact with adult inmates in common spaces. The federal statute defines juvenile as any person under the age of 18. South Carolina is one of the few states that treats a 17-year old as an adult. There is no funding provided for this mandate.

Here are some other requirements of the PREA standards:

  • Designate a PREA point person to coordinate compliance efforts;
  • Screen inmates for risk of being sexually abused or sexually abusive, and use screening information to inform classification, work, education, and program assignments;
  • Develop and document a staffing plan that provides for adequate levels of staffing and, where applicable, video monitoring;
  •  Train employees on their responsibilities in preventing, recognizing and responding to sexual abuse;
  • Perform background checks on prospective employees, current employees who will be supervising inmate workers, and do not hire abusers;
  • Ban cross-gender pat-down searches of female inmates in prisons and jails and of both male and female residents of juvenile facilities;
  • Incorporate unique vulnerabilities of lesbian, gay, bisexual, transgender, intersex, and gender  nonconforming inmates into training and screening protocols;
  • Enable inmates to shower, perform bodily functions, and change clothing without improper viewing by staff of the opposite gender;
  • Restrict the use of solitary confinement as a means of protecting vulnerable inmates;
  • Provide at least two internal reporting avenues, and at least one way to report abuse to a public or private entity that is not a part of the facility and that can allow inmates to remain anonymous upon request. Inmates must also be provided with access to outside victim advocates for emotional support services related to sexual abuse;
  • Develop a written plan to coordinate actions taken among staff first responders, medical and mental  health practitioners, investigators, and facility leadership in response to a sexual abuse incident. A facility must also have policies to prevent and detect retaliation against persons reporting sexual abuse or who cooperate with investigations;
  • Investigations must follow a uniform evidence protocol that maximizes the potential for obtaining usable physical evidence for administrative and criminal proceedings. Victims must be offered no-cost access to forensic medical examinations where evidentiarily or medically appropriate;
  • Require staff to be subject to discipline for sexual abuse, presumably termination for actually engaging in sexual abuse, and reporting to law enforcement and relevant licensing bodies where appropriate;
  • Provide timely, unimpeded access to emergency medical treatment and crisis intervention services;
  • If a facility has a grievance process for inmates alleging sexual abuse, the facility may not impose a time limit on when an inmate may submit a grievance regarding such allegations;
  • Develop methods to ensure effective communication with inmates that have intellectual, psychiatric, or speech disabilities;
  • Enter into or renew contracts only with outside entities that agree to comply with the standards.

For more detailed information, you can download the “Implementing the Prison Rape Elimination Act: A Toolkit for Jails” at http://www.prearesourcecenter.org/library/509/resources/toolkits-and-handbooks, which provides a checklist of requirements necessary for PREA compliance.

Even if there is no direct financial penalty for a local jail that fails to comply with PREA, there is some concern that the federal standards may evolve into a standard of care in civil actions related to inmate sexual abuse.   

Below are some additional websites that may be helpful:

PREA standards: http://www.gpo.gov/fdsys/pkg/FR-2012-06-20/pdf/2012-12427.pdf

PREA standards for the US Department of Homeland Security confinement facilities:

http://www.dhs.gov/sites/default/files/publications/prea-nprm-final-120612.pdf

Examples of a written PREA policy document:

http://www.jdaihelpdesk.org/intersiteconference2013/PREA%20Policies%20and%20Procedures%20-%20Dallas%20TX.pdf

http://www.wcl.american.edu/endsilence/documents/prea_doc_idaho.pdf

The National PREA Resource Center:

http://www.prearesourcecenter.org/

Please consult your county attorney if you have specific questions about the interpretation or application of these changes. The SCAC staff is also available at 1-800-922-6081 to address general questions.