A 2-1 decision by the U.S. Court of Appeals for the District of Columbia has found that the final section of the CIA's report on the Bay of Pigs is a draft document and is therefore withholdable pursuant to FOIA Exemption 5 pursuant to the deliberative process privilge. Basically the decision boils down to the fact that the Court accepted the report to be a draft document and therefore, under any circumstances under the current FOIA law, an agency may protect the draft under Exemption 5.
The decision shows why Congress should write two things into the FOIA. First, Congress should put into the FOIA a requirement for an agency to make a foreseeable harm showing in litigation. Secondly, Congress should create a time standard for withholding material under Exemption 5. These documents are approximately 40 years old, and it is not clear what public policy position would be advanced by allowing Exemption 5 material to be protected for such a long period of time.
The decision can be found here.