Under 6 U.S.C. § 113(g)(2), the Secretary of Homeland Security has the authority to “designate such other officers of the Department [of Homeland Security] in further order of succession to serve as Acting Secretary.” In April 2019, Peter M. Shane—a law professor at The Ohio State University Moritz College of Law who specializes in administrative law and separation of powers—submitted a FOIA request to DHS seeking any order or memoranda dated subsequent to December 9, 2016, by which any Secretary of Homeland Security had exercised his or her authority under 6 U.S.C. § 113(g)(2) to designate a further order of succession for Acting Secretary. DHS responded that it had identified two pages of responsive records but withheld both in full under exemption 5.
Represented by Public Citizen, Professor Shane filed a lawsuit challenging DHS’s withholding of the responsive records. In light of the lawsuit, DHS released seven pages of responsive records (with redactions to one).